The Law Firm recently obtained a judgment from the Supreme Court in which the following principle was stated: if a manager is unfairly dismissed when a non-withdrawal clause is in force, the manager is entitled both to the compensation for damages due to the breach of the non-withdrawal clause and to the supplementary indemnity established by the applicable collective bargaining agreement (click here to download the judgment).
Nowadays, clauses aimed to increase the commitment of human resources are common practice in the labour market. In these cases further consideration or reciprocal contractual commitment (i.e. also the employer cannot terminate the employment relationship except a gross misconduct occurs) is granted to the involved employee.
Among these clauses, non-withdrawal clauses are becoming more relevant also because, after the enactment of the so-called Job Act, it can be used also for the employment of highly skilled employees (white collars and not only managers) who may intend to negotiate a protection stronger than what provided by the law or by the national collective bargaining agreement.
In the light of the above, the mentioned judgement of the Supreme Court is particularly meaningful. In that case, a top manager was dismissed before the expiry date of the non-withdrawal clause and the Court stated that penalty provided for the breach of the non-withdrawal clause has to be added to the supplementary indemnity due for unfair dismissal.
It may be objected that the combination of the two triggers a duplication of compensations but the Court clearly stated that the compensation and the further indemnity are both due because two different breaches of contract occurred: since (i) the withdrawal happened before the expiry date and (ii) the dismissal was not grounded. As also stated by the lower courts, the non-withdrawal clause implies that parties intended to freeze the right to withdraw until a certain date; only after that date such right exists and it can be enforced in compliance with the law and the national collective bargaining agreement.
It is remarkable that the previous case law of the Supreme Court made a focus of attention on the fact that the compensation due to breach of non-withdrawal clause included indemnity in lieu of notice (see Cass. 16 May 2012 n.7650 and Cass. 14 October 2005, n. 19903).
Another judgement of the Supreme Court (Cass 10 October 2006, n. 21749) provided a different conclusion: amounts due as indemnity in lieu of notice and further indemnity were deemed included in the non-withdrawal clause. However, such inconsistency of interpretation may be reduced if we take into account that the Supreme Court does not interpret law provisions but agreements drafted using different wordings.
In other words, parties shall pay attention to the wording of the clause to be sure that it is consistent with the result they want to reach.
