Investigations on Aliunde Perceptum

What does aliunde perceptum mean?

The Latin expression “aliunde perceptum” literally translates to “received elsewhere or from another source.” In employment law, aliunde perceptum refers to the income earned by an employee who has been unlawfully dismissed.

How is aliunde perceptum calculated?

During legal proceedings, once the illegitimacy of a dismissal has been established, it becomes necessary to determine the amount of compensation owed. According to the aliunde perceptum principle, this compensation can be reduced by the amount of wages the unlawfully dismissed employee has earned from other employers during the period between dismissal and reinstatement. However, it is important to note that the burden of proof always lies with the employer.

In other words, Article 18 of Law No. 300/1970 (the “Workers’ Statute”) establishes that, in the event of a dismissal declared null or invalid by a court, the employer is required not only to reinstate the employee but also to pay compensation “equal to the actual total remuneration from the day of dismissal until the day of reinstatement.” This compensation “may not be less than five months of actual total remuneration.”

Based on these provisions, an employer who unlawfully dismisses an employee must pay all wages from the date of dismissal to the date of reinstatement. However, such compensation may, in some cases, be reduced. This reduction applies when the unlawfully dismissed employee, during the trial, has found new employment and earned income from it (aliunde perceptum), or when the employee has not made reasonable efforts to find new work (aliunde percipiendum).

Difference between aliunde perceptum and aliunde percipiendum

While aliunde perceptum refers to income actually received by the employee between dismissal and reinstatement, aliunde percipiendum concerns cases where the employee failed to make sufficient efforts to seek new employment. Specifically:

• In the case of aliunde perceptum, to obtain a reduction of compensation (which corresponds to all wages accrued from the date of dismissal until reinstatement), the employer must prove that the employee found another job during that period and received income from it—whether as an employee or self-employed worker.
• In the case of aliunde percipiendum, the unlawfully dismissed employee has a duty to actively seek new employment, since, under Article 1227, paragraph 2, of the Civil Code, compensation is excluded for damages that could have been avoided with ordinary diligence.

Therefore, if it can be demonstrated that the employee remained inactive and failed to look for a new job during the proceedings, the employer may request a reduction in the compensation provided for by Article 18 of the Workers’ Statute. In both situations, the burden of proof rests with the employer.

Burden of proof in aliunde perceptum and reduction of compensation

Case law from the Labour Section of the Court of Cassation consistently holds that, in quantifying the damages resulting from an unlawful dismissal, aliunde perceptum must be taken into account (see judgments of 16 May 2005, No. 10155; 26 October 2010, No. 21919; 11 February 2013, No. 3181; and 16 July 2013, No. 17370).

A company involved in a labor dispute over unlawful dismissal brought by a former employee may therefore investigate whether, after termination, the employee has performed or continues to perform work for other companies—even unofficially (i.e., undeclared work).

It is the employer’s responsibility to prove that the dismissed employee has earned or could have earned income, as reaffirmed by the Court of Cassation in a recent ruling:

“The burden of proof relating to aliunde perceptum and aliunde percipiendum lies with the employer, since the fact that an unjustly dismissed employee has worked and earned income during the proceedings constitutes a fact preventing the claim and must therefore be proven by the party asserting it, not by the party seeking compensation, in accordance with Article 2697 of the Civil Code.”
(Cass. Civ., 17 June 2020, No. 11706)

As further confirmed by the Court of Cassation (Judgment No. 11122/16), any employer wishing to invoke the principle of aliunde perceptum (or aliunde percipiendum) must bear the full burden of proof. For employers, this can represent a significant challenge.

In such a delicate and complex situation, relying on the investigative expertise of Argo S.p.A. can be the best choice. In these cases, it is essential to verify and, if necessary, prove whether the former employee has engaged in other paid work (even unofficially), as well as to determine the amount of income earned during the period following termination.

To gather such evidence and information, our professionals conduct thorough investigations aimed at reducing the presumed damages. A comprehensive report prepared by our specialists, admissible in court, is a valuable tool for employers seeking to obtain a reduction or even the annulment of the compensation claimed by a former employee.