Validity of a dismissal deriving solely from the reading and justifiability of the employer’s dismissal

The Court of Cassation, with judgement No. 23503 dated 9 October 2017, has ruled valid a dismissal that took place “through reading of the written notification before the recipient (ed. in this specific case a manager) who made himself unavailable to receive a copy”. On the matter, the Court, recalling a few previous applicable cases, specified that “refusal by the recipient through a unilateral act of refusing to receive the deed does not exclude its notification from having been regularly performed”, also because “refusal to receive the dismissal cannot take place to the damage of the obligated party”. However, in this specific case, the Court of Cassation, leveraging from its consolidated opinion of distinction between “justifiability” and “justified reason” for dismissal, deemed the dismissal ‒ even if validly notified ‒ unjustified, since it was untrue that it was impossible to assign the manager to a different task. In fact, the Court states that, if it is true that the dismissal of the manager was supported by the employer’s full freedom of decision, it cannot be the result of arbitrary entrepreneurial choices. Consequently, similarly to what had already been ruled, the Court stated that “once the employer has made known the reason for the termination of the work relationship and in court it is verified, instead, that the stated reason does not apply, the dismissal may be declared unlawful by the Trial Judge not for reviewing the discretionary entrepreneurial options, but for a practical assessment on their truthfulness or lack of good faith on the reason formally stated”.