The Court of Cassation, with judgement No. 19732 dated 25 July 2018, confirmed that in the case of dismissal for justified objective reasons, the selection of the employee, or employees, to be dismissed is not fully at the discretion of the employer. In fact, it is limited, in addition by the prohibition to discriminate, by the rules on fairness and good faith to which, pursuant to articles 1175 and 1675 of the Civil Code, each conduct of the parties must comply as part of a mandatory relationship and thus, even in the case of termination of one of the parties. On the matter, the Court of Cassation remarked that the trial judges discussed the issue of how to identify in practical terms the objective criteria that allow deeming said choice compliant with the aforementioned principles, deeming that it is possible to refer to, even while taking into account the diversity of the respective regimes, the criteria established by the Law No. 223/1991 governing collective dismissals. Thus, consequently, in light of the criteria of family dependants and service seniority established in a similar fashion for said dismissal. Moreover, said criteria allow the employer to perform its unilateral power of selection consistently with the interests of the employee and of the company. Consequently, among multiple fully available employees and faced with the needs, originating from production reasons, to reduce by one or multiple units the work force, it is necessary to respect the aforementioned fairness and good faith principles. In terms of the penalties applicable whenever this legal principle is breached, the Court of Cassation has reminded of what is established by the Law No. 92/2012 (the so-called Fornero Law) which establishes typically payment of the indemnification ranging from a minimum of 12 and to a maximum of 24 monthly salaries, reserving the restoration of the employment relationship, with an indemnification up to a maximum of 12 monthly salaries in those residual cases that act as exceptions, where the non-existence of the fact on which the dismissal is based is supported by specific proof. Therefore, a breach in the principles of fairness and good faith when choosing among employees performing similar tasks, according to the Court of Cassation gives right to the indemnification protection established by paragraph 5 of article 18, given that the case of “open non-existence of the justified objective reason” does not apply as set out in article 18, paragraph 7, of the Law 300/70, as a prerequisite for granting the reintegration protection.
