Reinstatement of a job position after 7 months does not affect the lawfulness of a dismissal (Il Quotidiano del Lavoro de Il Sole 24 Ore, 6 March 2019 – Alberto De Luca, Gabriele Scafati)

By way of judgment No. 4672 filed on 18 February 2019, the Court of Cassation has once again ruled on the lawfulness of dismissal for elimination of a job position when such position is reinstated a few months after the employer’s termination of the employment relationship.

The case refers to an electronics engineer specialised in measurement systems who was employed as the Compliance manager of the Italian subsidiary of a Japanese multinational, in a “Middle Manager” role as the person in charge of “metrology”. More specifically, the employee was dismissed on justified objective grounds, having her job position been eliminated following the repeal of a provision governing the monitoring activities tasked to her, which were no longer required.

The employee promptly appealed the dismissal, objecting, inter alia, that the company had then reinstated the position just 7 months after the suppression. The trial court judgments both concluded with the rejection of the employee’s claims, holding that the actual elimination of the position and the time elapsed between the elimination and reinstatement of the position represented reasonable grounds to justify an organisational change within the company requiring the reinstatement of the previously eliminated position.

Brought before the Court of Cassation, the employee’s action failed to achieve a different outcome. In its ruling on the only plea of the appeal, whereby the employee claimed that the judges in charge had erred in their assessment of the allocation of the burden of proof and of the related satisfaction criteria (with particular regard to that allocated to the employer), the Court of Cassation found the appellant’s claims to be once again unfounded. On this point, it is interesting to note how emphasis has been placed on the time elapsing between the elimination and the reinstatement of the position previously held by the dismissed employee, with the Court confirming that no errors were made in rulings of the trial courts, which had deemed the time period of seven months to be reasonable (just as the Court of Cassation, in judgment No. 11413 of 11 May 2018, had deemed a period of 8 months to be reasonable) and therefore not capable of affecting or nullifying the validity of the dismissal…

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