This was established by a recent order of the Supreme Court of Cassation.
The Supreme Court, by order no. 1072 of 17 April 2019, reiterated that the illegally dismissed worker is no longer entitled to the replacement indemnity claim after their relationship is terminated by retirement.
In fact, when the worker has actually retired (just the vesting of the right or the related application is not sufficient), reinstatement and payment of the replacement indemnity is no longer possible (see Cass. N. 14426/2000). This is because the employer's obligation to indemnity equal to fifteen monthly salaries as per article 18, fifth paragraph of Law no. 300 of 1970 qualifies as an obligation with an alternative faculty, the object of which is the reintegration into the workplace, the actuality of which is a necessary presupposition of the worker 's right of choice. It follows that in all cases where the reinstatement obligation has become impossible due to a reason not attributable to the employer, the latter indemnity is not due.
According to the Supreme Court, the sentence of reinstatement, despite its declarative nature with retroactive effect, cannot therefore supersede facts unrelated to the employment relationship, such as the retirement of the employee. Only compensation will be due to the employee, within the limits established by the sentence, up to the day of the effective termination of the relationship. (LC)
