"The employment relationship of indefinite duration, as modulated as a result of Law No. 92/2012 and Legislative Decree No. 23/2015, lacking the prerequisites of certain predetermination of the cases of termination and their adequate protection, is not assisted by a regime of stability, so that, for all those rights that are not prescribed at the time of the entry into force of Law No. 92/2012, the limitation period begins, in accordance with the combined provisions of Articles 2948, No. 4 and 2935 CivilCode,from the termination of the employment relationship."
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The Court of Appeals of Brescia, confirming the first instance ruling in part qua, rejected the appeal brought by some female workers, declaring the salary claims they had against the employer company to be time-barred, on the assumption of the real stability of the employment relationship and the consequent commencement of the limitation period already during the course of the relationship itself. This is the case even after the amendment of Article 18 St. Lav. by Law No. 92/2012 first and Legislative Decree No. 23/2015 later, since following the aforementioned amendments the application of real protection resides in the case of retaliatory dismissal that would be imposed as a result of and by reason of any wage claims by workers.
The Supreme Court disagreed with said interpretation and, thus, declared the appeal well-founded.
The Supreme Court upheld the exclusion of the running of the statute of limitations on the right to wages during the employment relationship where there is a psychological situation of the employee such that it could induce him not to exercise his right for fear of dismissal, which can be configured when there is a lack of actual stability in the relationship, i.e., when the annulment of the dismissal is not followed by the full reinstatement of the employee to the pre-existing legal position.
The Supreme Court, therefore, held that the open-ended employment relationship, as amended as a result of Law no. 92/2012 and Legislative Decree no. 23/2015, lacking the prerequisites of certain predetermination of the cases of termination and the type of protection applicable, is not assisted by a regime of stability, so that, for all those rights that are not prescribed at the time of the entry into force of Law no. 92/2012, the limitation period begins, pursuant to the combined provisions of Articles 2948, no. 4 and 2935 Civil Code, from the termination of the employment relationship.
Lastly, it has been reiterated that the statute of limitations runs during the course of the employment relationship only if reinstatement is and also appears to the worker to be the applicable protection against any unlawful termination of the relationship itself, that is, regardless of the nature of the termination itself. Only under this condition is it possible to exclude the existence of a psychological situation of fear on the part of the worker that would induce him or her to refrain from claims to avoid possible dismissal.
