Categories: Insights

21 Feb 2013

Court of Cassation: dismissal not justified if the employee is forced to the inactivity (Il Sole 24 Ore, February 18, 2013, page 31)

Court of Cassation, with sentence no. 1693 of January 24, stated that the subordinate employee’s refusal of carrying out his work performance (e.g. in the case he/she is assigned to lower duties) can be lawful and, therefore, make unlawful the dismissal based on the principle of “self-protection” in the equivalent performances contract, if the refusal is balanced to the unlawful behavior of the employer and in compliance with the principle of good faith. Nonetheless, the Supreme Court specifies that, in order to deem justified the refusal of fulfillment, the trial judge shall make a balanced assessment of the non-fulfillments, also considering their proportionality with reference to socio-economic function of the contract and the effect on the parties positions and on their interests. In essence, the refusal of fulfillment will not be in accordance to the good faith principle if the non-fulfillment is serious or is not significant with reference to the interest of the other contractual party.
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