With order No 12244 of 9 May 2023, the Italian Supreme Court of Cassation confirmed that if an employee refuses to go from full-time to part-time, he/she may be lawfully dismissed if the dismissal is not based on the employee’s refusal but is because the employer is unable to use the employee’s full-time services.
The facts of the case
Following the sale of a company branch (consisting of the supermarket at which the employee was employed) the three shareholders in the transferee company had decided to work at the shop and, therefore, the workforce was oversized. To deal with the situation, the three full-time employees, including the employee, were asked about their willingness to reduce working hours.
The employee refused to move from full-time to part-time and, consequently, the Company, as it was unable to use the employee’s full-time services, dismissed the employee for justified objective reasons.
The employee challenged her dismissal, alleging, primarily, that the dismissal was retaliatory and, in the alternative, that it was unlawful.
The Court declared the dismissal unlawful, but not retaliatory and ordered the Company to reinstate the applicant or to pay her compensation equal to five months’ total actual salary under Article 8, Italian Law No 604/66.
In the second stage of the same proceedings at first instance, the Court rejected both the employee’s main claim seeking a declaration of nullity of the dismissal, and the Company’s ancillary claim, seeking a declaration of the lawfulness of the dismissal for justified objective reasons.
The Court of Appeal, hearing only the employee’s appeal, upheld the decision taken by the Court, rejecting the complaint brought by the employee.
The employee appealed to the Court of Cassation against that ruling, challenging the Court of Appeal’s judgment for having rejected the retaliatory nature of the dismissal.
The decision of the Italian Supreme Court
The Italian Court of Cassation noted, preliminarily, that Article 8, paragraph 1, of Italian Legislative Decree No 81/2015 states that ‘the employee’s refusal to transform his or her full-time employment relationship into a part-time relationship, or vice versa, does not constitute justified grounds for dismissal’.
According to the Italian Court of Cassation judges, this rule, on the one hand, excludes the possibility that the refusal to transform the relationship into part-time can constitute in itself justified grounds for dismissal. On the other hand it does not preclude a dismissal being lawful for objective reasons in the event of a refusal to go part-time, entailing – in the words of the Court – ‘a remodulation of the justified objective ground and the burden of proof’ placed on the employer.
The Italian Court of Cassation judges stated that, in this situation, for the purposes of the lawfulness of the dismissal, the following prerequisites must be met and proved by the employer:
- the actual financial and organisational needs which do not permit the provision of full-time work, but only with reduced hours;
- the proposal to the employee or employees to transform the part-time employment relationship and the rejection of the same;
- the existence of a causal link between the need for shorter hours and dismissal.
The provision referred to in Article 8, paragraph 1, set out above should not, therefore, be understood in an absolute sense, as a blanket prohibition. It is, rather, a prohibition to be read in a strictly literal way, which does not preclude the possibility of a lawful dismissal for inability to use full-time services associated with the employee’s refusal to change to part-time.
In the event of such a refusal, in other words, it becomes ‘a component of the wider burden of proof‘ on the employer who has ordered a dismissal on the basis of objectively justified reasons owing to economic and organisational difficulties.
Nevertheless, as noted by the Italian Court of Cassation itself, the possibility cannot be excluded that a dismissal is, in fact, retaliation for an employee’s refusal to transform his or her employment relationship with a reduction in working hours. As is known, in this case the dismissal would be null and void, but the nullity must be supported by the employee proving that that the retaliatory intent was the exclusive reason for the dismissal, including with respect to other elements that may be relevant to a just cause or justified reason.
In particular, with reference to the present case, the Italian Court of Cassation judges concluded that ‘the Court of Appeal, given that the [lower] court declared the dismissal unlawful for justified objective reasons for failure to prove the reasons given (and that the related decision was not challenged by the company), excluded the possibility that the dismissal was based on a single and decisive retaliatory ground against the current applicant […]. Therefore, there is no room for holding that the breach of the legal provisions complained of is established, nor can the judgment be claimed to suffer from the defect of apparent reasoning apply given that the appellate decision does not present any of the hypotheses of ‘anomaly of grounds’ appealable before the Court of Cassation’, with the consequent rejection of the appeal brought to the Court of Cassation by the employee.
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