Dismissal for poor performance to be linked to subjective and objective parameters

The Court of Cassation, with judgement No. 18317 dated 19 September 2016, intervened on the topic of dismissal for justified subjective reasons based on poor performance. According to the Supreme Court of Cassation, failure to achieve a specific result is not sufficient evidence for dismissal, but it is also necessary to demonstrate a culpable and negligent violation of the contractual obligations by the employee in the fulfilment of his/her normal job performance. In the case examined, the Court refused the claim of an employer that was therefore sentenced to reinstate and pay compensations owed to an employee from the date of dismissal up to the date of reinstatement. In the judgment reasons, the Court stated that the burden of proof borne by the employer cannot leave out an assessment under different points of view: (i) a subjective point of view, which is based on the examination of the objectives agreed with the employee at his hiring and the evaluation of his guilty and negligent conduct; and (ii) an objective point of view, according to which it is always necessary to compare the performance of the employee with the average performance of other workers. The Court of Cassation, with this decision, clarified the types of elements that must be proven in order for this type of dismissal to be considered lawful.