The Judge’s verification of the effectiveness of business choices at the basis of the dismissal (Norme & Tributi Plus Diritto – Il Sole 24 Ore, 18 May, 2021 – Enrico De Luca, Claudia Cerbone)

In cases of dismissal for justified objective reason, the Judge’s verification of the “manifest lack of the fact“ requirement underlying the dismissal, from which the possibility of employee reinstatement derives, must cover the technical, production and organisational needs stated by the Company, and the possibility of relocating the employee elsewhere within the company organisation.  

In its order dated 4 May 2021, the Court of Rome concluded that, even if the objective reason for dismissal due to production reasons was under the employer’s free assessment, and the Judge unable to assess the company management criteria, it is up to the same Judge to check the effectiveness and non-speciousness of the company reorganisation.   

The case before the Court concerned the dismissal for justified objective reason of an employee of a company specialising in physiotherapy services. The dismissal was due to financial reasons based on the reduction in turnover recorded by the employer company in the previous three years. In the letter of dismissal, the Company stated the need to carry out “a cost reduction through a company reorganisation which included the tasks carried out [by the employee], and that these would be carried out personally by the director and included in the new information and electronic systems”. The Company dismissed the employee as there was no possibility of assigning her to equivalent positions, as stated by the Company.

The employee challenged the dismissal because it was not based on an effective company reorganisation and that the Company had not complied with the repêchage obligation. She requested the assessment of the lack of the fact underlying the dismissal under art. 18 paragraphs 4 and 7 of the Workers’ Statute, punishable by reinstatement in the workplace plus 12 months’ salary as damages.

The Court held that the dismissal was unlawful. It referred to case law in which the objective reason for dismissal can be identified by a different distribution of tasks among employees for the more cost-effective and efficient management of the Company. This would mean the employee who performed the task exclusively was redundant (Court of Cassation ruling no. 19185/2016 and Court of Cassation ruling no. 29238/2017). The Court stated that it is not sufficient that the tasks formerly carried out by the dismissed employee are assigned to colleagues. The reorganisation must be the source of the dismissal rather than being an effect.

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