Dismissal of employees for poor performance. What is “poor performance”? (Newsletter Norme & Tributi no. 167 Camera di Commercio Italo-Germanica – Vittorio De Luca, Luca Cairoli)

Poor performance consists of a failure by an employee to fulfil their principal obligation, i.e. to perform their work, and is, according to the majority legal opinion, a subjective justification for dismissal. Recently, the Court of Cassation, Labour Section, in judgment no. 1584 of 19 January ult., reiterated that, in order to legitimately dismiss an employee for poor performance, the simultaneous existence of two prerequisites is required, the burden of proof of which falls on the employer: (i) on an objective level, there must be an enormous disproportion between the objectives set for the employee and what the employee actually achieves compared to the overall results with reference to an average of activities among the various employees assigned to the same job; (ii) on a subjective level, the attributability of said disproportion to the employee, i.e. to the employee’s negligent conduct that is not attributable to the employer’s organisation of the work. According to the aforementioned judgment, moreover, “poor performance cannot in itself be proved by the employee’s multiple disciplinary records already sanctioned in the past (ed. with cautionary sanctions), because this would constitute an indirect substantial duplication of the effects of conduct already concluded”.