Dismissal for objective reason of worker who refused full time work: burden of proof for lawfulness of dismissal

In order no. 29337 of 23 October 2023, the Italian Court of Cassation ruled that dismissal for objective reason in the event of refusal to work part time (or vice versa full time) is not in itself unlawful, but involves a redetermination of the justified objective reason and the burden of proof placed on the employer.

The facts of the case

The case arose from the dismissal for redundancy of an employee who had refused the company’s offer to change her employment relationship from part time to full time.

The employee challenged the dismissal on the basis that it was not grounded on a justified objective reason and was retaliatory. The Court rejected the worker’s application, holding that the company’s reasons for the dismissal were proven.

The second instance judges, repealing the first instance ruling, accepted the appeal filed by the employee, noting, in summary, that under Article 8, paragraph 1 of Italian Legislative Decree no. 81 of 2015, “a worker’s refusal to change their full-time employment relationship into a part-time relationship, or vice versa, does not constitute a justified reason for dismissal”. The judges based their decision on the findings that the prospect of a company reorganisation by hiring a new full-time accountant to cope with an increase in work activity was to be considered specious and that, in any case, the impossibility of the company distributing an overall set of clients between the two accountants or the difficulty of finding a part-time resource in the short term had not been proved, nor had the actual inevitability of employee’s dismissal as a necessary consequence of the alleged reorganisation.

The Court of Appeal also ruled that the dismissal, in addition to being unlawful, was also retaliatory, as it was directly linked to the employee’s refusal to change the relationship from part time to full time.

Consequently, on appeal, the dismissal was declared null and void, and the company was ordered to reinstate the employee and to pay an indemnity commensurate with the last salary used as a reference for the calculation of the severance indemnity from the dismissal to the actual reinstatement, as well as the payment of social security and welfare contributions.

The appeal to the Italian Court of Cassation and the latter’s decision

The company appealed against this judgment to the Italian Court of Cassation.

The Italian Court of Cassation – in repealing the ruling on the merits – specified that, in the case in question, for the purposes of justified objective reason (giustificato motivo oggettivo, ‘GMO’), the employer must prove the following:

• the actual financial and organisational needs such as not to allow the continuation of full-time employment (or part-time as in the case at hand), but only with the different hours requested;
• the offer made to the employee to change the employment relationship to part-time and the refusal of the same;
• the existence of a causal link between the requirement to reduce (or increase) working hours and the dismissal.

The refusal to change the part-time employment relationship, as stated, becomes, therefore, as specified by the Court, “a component of the greater burden of proof on the employer, which includes the financial reasons which make it impossible to continue to use part-time work, and the refused full time offer”.

On the basis of these principles, the Italian Court of Cassation has, therefore, specified that it is necessary to prove not only the validity of the reasons given for the change of working hours, but also the impossibility of the employee working at a different time, as a component/constituent element of the justified objective reason, without prejudice to the fact that the appropriateness and expediency of the business decision cannot be challenged, in accordance with the provisions of Article 41 of the Italian Constitution.

The Italian Court of Cassation also ruled that, for a retaliatory dismissal, for the dismissal to be declared null and void, it is necessary that the employer’s retaliatory intent was the exclusive determining factor, also taking into consideration other relevant facts for the purposes of establishing just cause or a justified reason for termination, with the burden of proof falling on the employee.

As the decision of the lower court was not consistent with these principles, the judges of the Italian Court of Cassation accepted the appeal brought by the company, referring the case to the lower court sitting in a different composition.

Other related insights:

• Refusal to work part-time: when is dismissal lawful for justified objective reason?
• Refusal to transform the employment relationship from full time to part time is evidence of a “repêchage” attempt