CONFLICT OF LAW ON THE EFFECTS OF DISMISSAL of the appeal sent by post BEFORE THE EXPIRATION OF 60 DAYS BY APPLICABLE LAW N. 604 DEL 1966 - Call for a decision by the United Sections (Supreme Chamber Work Order No. 10230 of May 4, 2009, Pres Sciarelli, Ianniello Rel).
John C. dependent dei Paschi di Siena SpA Banca was dismissed for disciplinary reasons, by letter dated July 20, 1998 which reached him on July 22 next. Before contacting the court, he appealed the dismissal by registered letter sent Sept. 18, 1998 that the company has received 25 September 1998. In subsequent proceedings before the Court Termini Imerese he sought the annulment of the dismissal for unfounded reasons. The company has argued the forfeiture of the employee the right to appeal the dismissal, noting that it received notice of appeal five days after the expiry of 60 days set by art. 6 of Law 604 of 1966. The Court upheld the objection raised by the company, dismissing the action. On appeal, the Court of Palermo upheld the decision of the Court noting that the purpose of verifying compliance with the limitation period provided by art. 6 L. No 604/66, reference must be made on the date of receipt, not the date of dispatch of written notice of the appeal. The worker appealed to the Supreme Court criticizes the decision of the Court of Palermo to have ruled out the applicability of the unilateral acts of nature not the case, sent via the postal service, the rule laid down by the Constitutional Court ruling No. 26 November 2002 477, that the effects from the service of documents by post should be reconnected to the notifier at the time of delivery of the act to notify the bailiff to avoid a burden on this subject, the risks arising from activities, delays etc.. removed from his control and his sphere of availability.
The Supreme Court (Section Work Order No. 10230 of May 4, 2009, Pres Sciarelli, Rel Ianniello) found that in has determined a conflict of law, as up to 2006 has been consistently followed the approach adopted by the United Sections in Case No. 5395 of 13 October 1982 that the appeal of the dismissal is an act of hospitality, waves, under Article. 1334 cod. Civ. takes effect when it comes to the attention of the recipient. Over the last decade - the Court noted - were also developed from a critical part of the doctrine, not only de jure condendum, indifference with regard to retention, the level of maturation of the decline in general, the occurrence of obstacles to a right and to achieve an expected result does not controllable by the person who recently added to this must be The Constitutional Court, with rulings by November 26, 2002 No 477, No. 23 January 2004 No 28 and March 12, 2004 97, declaring as unconstitutional to the art. 149 cod. proc. Civ. and art. 4, third paragraph of the Law No 20 November 1982 890, to the extent that it provides that service is perfected, for notifying the date of receipt of the document by the recipient rather than before delivery of the bailiff, has come to say that the principle of destination between the two phases of processing notifications of the pleadings, respectively, for the notifier and the consignee, is crucial for the interpretation of other provisions of the code of civil procedure on notifications. This principle has been argued with the finding that in terms of service of pleadings Articles. 3:24 GC "require that the guarantees of the knowability of the recipient should coordinate with the interest of the notifier to not be held liable for the unintended outcome of a proceeding notificatorio partially removed his powers Pulse" experiment, then solution as constitutionally required as co-ordination that can be deduced from the "principle of sufficient ... the completion of formalities which do not escape the sun on the availability of the notifier.
Along this guideline - added to the Supreme Court - has also recently given a ruling Section of the Labour Court (Cass. September 4, 2008 No 22287), which, starting from the jurisprudence established in the critical matter of the suitability of the appeal of the dismissal to prevent the decline in art. 6 of Law 604/66 and appreciating the possible effects of the principles affirmed by the Constitutional Court on this ground also, especially in view of the particular interests that are involved by the worker, he said (without considering it necessary to propose a question of constitutionality ) that can be deduced from the law 604/66 the principle that the appeal of the dismissal must be considered early, preventing the loss referred to this law, if the letter which it is contained, within sixty days, delivered at the post office and even if it is delivered to the recipient after the expiration of that period, even before that decision (which is recently standardized: Cass. Sec. Lav. March 16, 2009 No 6335) and in the same spirit, Cass. June 19, 2006 No 14087, in interpreting art. 410, second paragraph of cod. proc. Civ. - That the statement of the request for conciliation interrupts the prescription and suspending for the duration of the attempt and the same for twenty days following its conclusion, the course of any limitation period - said the suspension of the limitation period for the appeal of the dismissal is produced by the lodging of the application for conciliation which the appeal, it is irrelevant vice versa, as foreign to the sphere of control of the employee, upon notice from the employment with the employer the date of the meeting to carry out the attempt at conciliation. It is calculated as follows - the Court observed - within the Department of Labour is a conflict, prompted by new guidelines in academic writings and rulings by the Constitutional Court, on a subject that is of particular importance given the significance of the interests involved, for the possible effects in areas other than labor law, hence the opportunity for a discussion of it by the United Sections. Therefore, the Court has ordered the transmission of documents to the First President, for the possible assignment of the case to the United Sections for the resolution of the contrast observed.
Taken from website: http://www.legge-e-giustizia.it/index.php?option=com_content&task=view&id=3074&Itemid=180
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