Articles
10/11/2022
Employment and Industrial Relations

The employee’s right to receive a double salary

The cases

The Supreme Court, united Sections, with verdict no. 2990/2018, ruled that the sums that a user has to pay to an employee following a judgment establishing the existence of an case of unlawful staff leasing, in which the employee has offered his labor service refused by the user, have to be qualified as salary and not as a compensation for damages.

The Supreme Court of Cassation, starting from the judgment No. 29092/2019 have applied such principle also in the case of transfer of a part of an undertaking when there is a verdict that ascertains the illegitimacy of the transfer and a subsequent offer of labor services by the employee that has been refused by the transferor.

 

The rule of law

The importance of the qualification of the payment as salary and not as a compensation for damages depends on the fact that, only in case of damages the general principle of “compensatio lucri cum damno” (i.e. damages set off with other advantages) stated by article 1223 of the Italian civil code would apply.

As a consequence, the Supreme Court of Cassation in the mentioned verdicts, have stated the impossibility, for the transferor, to deduct from what is due to the employee what has been received  from the transferee, who has in the meantime (i.e until the verdict has been published) used its labor services.

For the Court of Cassation there are not only two employment relationships – one de jure remaining with the transferor, the other established de facto with the apparent transferee – , but also two different employee’s labor services, the first one “materially rendered in favor of the party with whom the employee, illegitimately transferred with the transfer of the part of an undertaking, established a de facto employment relationship ” and the second one” legally rendered in favor of the original employer, with whom the employment relationship was restored”.

 

State-of-the-art and new scenarios

The majority of case law, also territorially, has aligned with the abovementioned principles, although there are also some contrary verdict. It is clear now that, before entering into a transfer of a part of an undertaking, the parties must check the transaction with a much higher assessment of the risk in case the transaction is considered illegitimate.

The subsequent question that arose is now “if the employee is entitled to receive a double salary, is there also a right of the Pension Authorities to receive double contributions”?

The point has not been directly addressed yet, but we can imagine that some territorial court will have to rule on this matter soon.

 

This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Chiara Oggioni.

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