Pensione

Dismissal for reaching age limits: when is it possible?

The employment contract is susceptible to being interrupted by the will of one of the parties, be it the employer (in this case we speak of dismissal) or the employee (resignation).
To protect the worker's position, the legislation imposes the obligation on the company to justify the reason behind the dismissal.
Under this aspect we find disciplinary dismissals, represented by: Dismissal for just cause, which includes all those cases of withdrawal resulting from the worker's conduct being so serious as to damage the fiduciary bond with the employer, thus motivating the immediate interruption of the relationship , without respecting any notice period established by the applied national collective bargaining agreement; Dismissal for justified subjective reason, determined by a significant failure to fulfill contractual obligations by the worker, within which the company is in any case required to respect the contractually required notice period.
There is then a third category of dismissals represented by those for justified objective reasons, in which the withdrawal is linked to reasons inherent to the production activity, the organization of work and its regular functioning.
At this point it is legitimate to ask how the employer should behave in cases where the employee has acquired or is close to acquiring the requirements for old-age retirement.
Is it possible to withdraw from the contract in these cases? Let's analyze the issue in detail.
Dismissal for reaching age limits: when is it possible? Dismissal for old age pension: possible? No automatic termination of the relationship Certainty of access to the pension The case of dismissal notified before retirement age Dismissal for old age pension: possible? In accordance with article 4, paragraph 2, of Law 11 May 1990 number 108, in cases where the employee meets the personal and contributory requirements to access old-age pension treatment, in accordance with current legislation, the employer may terminate the contract without any obligation to justify one's decision, therefore even in the absence of motivation (so-called "withdrawal ad nutum").
Article 4 «Area of non-application» in fact provides (paragraph 2) that the provisions of article 18 of Law number 300 of 20 May 1970, regarding the protection of the worker in the event of illegitimate dismissal, does not apply «against service providers of workers over sixty, in possession of the pension requirements, provided that they have not opted for the continuation of the employment relationship".
However, the right of withdrawal in question, although valid even in the absence of motivation: Must be subject to the obligation to give notice to the employee concerned, as underlined by the Supreme Court, sentences of 20 March 2014 number 6537 and of 5 March 2003 number 3237 ); It must be excluded if the worker, with the employer's consent, decides to continue the relationship.
In particular, the employee's decision to continue working has the effect of prolonging the protection of the job, so that the contract continues to benefit from the regulations dictated regarding illegitimate dismissals.
read also Dismissal due to supervening unsuitability, what it is and the employer's obligations No automatic termination of the relationship The reaching of retirement age by the worker concerned does not produce any effect in terms of automatic termination of the relationship but, on the contrary, determines the start of the ad nutum withdrawal period.
This was clarified by the Court of Cassation with sentence dated 30 May 2019 number 14799.
The Supreme Court, we read in the sentence, stated that in private subordinate work «the general rule is that according to which the specificity and strictness of the causes of termination of the relationship exclude resolutions automatic upon reaching certain ages or upon reaching pension requirements, even if covered by collective bargaining".
Therefore, the achievement of the requirements for the attribution of the right to old-age pension treatment by the worker determines "the cessation of the stability regime (with consequent termination ad nutum) but not the automatic extinction of the relationship" (sentence number 14799/2019).
Certainty of access to the pension As clarified by the jurisprudence of the Supreme Court with the sentence of 8 September 2020 number 18662, the possibility for the employer to withdraw from the contract is conditional on the fact that the interested party obtains the pension treatment.
Consequently, it is not sufficient for the worker to be awaiting retirement due to meeting the age and contribution requirements.
On this point, the Supreme Court, in the cited sentence, specified that the «possibility of withdrawal ad nutum, with the employer's removal from the applicability of the regime of Law no.
300 of 1970, art.
18, is conditioned not by the mere maturation of the age and contribution requirements suitable for the old-age pension, but rather by the moment in which the social security benefit is legally achievable by the interested party so that the dismissal notified previously is not exempted from the application of the art.
.
18 pro tempo in force.
The provision of the ad nutum withdrawal, the Court of Cassation recalls, was deemed compatible with the Constitution" on the main finding that in a society like the current one, in which there is unemployment and underemployment, the absence of full protection of the right to work (due to lack of guarantees of job stability) for workers who have already obtained the old-age pension finds rational justification in their enjoyment of this social security treatment".
Ultimately, ad nutum dismissal is "admissible when one enjoys of old age pension treatment and it is not sufficient that one is waiting for it, even if the use is postponed for only 12 months" (sentence number 18662/2020).
read also Dismissal and contribution relief, 3 assessments to be made to avoid problems with INPS The case of dismissal notified before retirement age A particular case concerns dismissal notified before reaching retirement age, which however is intended to take effect only from that date.
The Supreme Court of Cassation ruled on this point with sentence dated 14 March 2018 number 6157, stating that the withdrawal in question is legitimate and does not provide the worker with any right to compensation in lieu of notice.
The thought of the Supreme Court arises from the case of sending the worker a letter of withdrawal with which the termination of the relationship was acknowledged due to the chronological age limit having been reached.
However, the date on which the person reached retirement age was later.
Consequently, the employer's termination of the employment relationship due to the achievement of the maximum limits of seniority was «carried out before the employee turned sixty-five but was intended to take effect at the time of this event.
Therefore, since it was not followed by the worker's removal from the workplace, it does not constitute dismissal, lacking the prerequisite of the desire to interrupt an ongoing relationship, but rather a simple resolutive act which, if compliant with collective bargaining and not contested by the recipient with regard to its legitimacy, it is not subject to the same legislation as dismissal, so that the worker's right to notice compensation does not arise, especially since, in this case, the notice is worked".
Ultimately, concludes the Court of Cassation, the beginning of the regime of termination ad nutum of the employment relationship, contemporary "with the end of the regime of causal termination, gives the employer the power to immediately terminate the relationship, provided (and without prejudice to the hypothesis of just cause pursuant to art.
2119 cc) the worker has had the opportunity to take advantage of the notice period thanks to a timely notice of dismissal, valid even if already given under the causal withdrawal regime, so that a so-called dismissal is legitimate which, although ordered under the causal withdrawal regime and without justification, it is intended to take effect only upon the worker reaching the sixty-fifth year of age and, therefore, coinciding with the takeover of the ad nutum withdrawal regime.

Author: A.W.M.

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