In jurisprudence, the orientation, according to which, "according to a literal and logical-systematic interpretation of art. 2118 of the Civil Code, in the permanent employment contract, the notice has no real effect - which entails, in the absence of an agreement between the parties regarding the immediate termination of the relationship, the mandatory right to the continuation of the relationship itself and of all the related obligations until the expiry of the term. It follows that, if one of the parties exercises the right to withdraw with immediate effect, the relationship is terminated immediately, with the sole obligation of the withdrawing party to pay the compensation in lieu of notice and without any influence from that moment on occurrences occurring, unless the withdrawing party, in exercising its right of consent, consents, having interest, to the continuation of the working relationship, extending its effectiveness until the end of the notice period "(Cass. No. 13988/2017).
Still in jurisprudence it has been clarified, however, that, in the case in which "the contractual provision sets a specific discipline of notice, providing [...] that even in the case of unprocessed notice all the applications will be applied during the period of notice duration provisions relating to economic and social security payments "(Court of Cassation 27294/2018, which examined article 35, paragraph 6 of the Tertiary-Commerce executives' collective bargaining agreement), real notice must be assigned to the notice; from this deriving that, during the period of notice, although not worked, any changes in the law and / or contract concerning salary treatments based on the replacement indemnity will continue to be applied, pursuant to art. 2118, c. 2, of the Italian Civil Code, and of occurrence of events such as illness.
The Supreme Court therefore warned of the need to clarify that a general principle cannot, by itself, exempt from the examination of the effects in the concrete case provided for by collective bargaining applied to the employment relationship, which could establish a specific (and more favourable for the employee) regulations regarding notice.
Recent jurisprudence has taken advantage of this last ruling of the Cassation (in this sense, the Court of Appeal of Milan, with sentence n. 368/2019, and the Vicenza Court, with sentence n. 500/2019). (CP)
