In the absence of a lawful reason, the dismissal of an employee who refuses a novation agreement is retaliatory (Norme & Tributi Plus Diritto – Il Sole 24 Ore, 3 June 2021 – Enrico De Luca, Raffaele Di Vuolo)

Dismissal justified by the outsourcing of the duties assigned to an employee must be considered retaliatory if, in actual fact, the job is not outsourced and the employee’s dismissal is due to the employee’s refusal to enter into a novation agreement with the company that changes the employee’s classification level and reduces his/her salary.

This conclusion was reached by the Court of Cassation in its order of 20 May 2021, which was adopted at the end of an action brought by an employee against her dismissal for justified objective reasons ordered by the company on 30 November 2016. In this case, the company decided to abolish the role of administrative employee held by the employee as a result of the outsourcing of administrative activities and the adoption of automated management systems.

The Court of Appeal of Florence, in the appeal brought under Art. 58 Law 92/2012, upheld the decision of the first instance court which, during the summary stage, had found that there were no justified objective reasons for dismissal since the duties carried out by the employee had been assigned, right from the day after her dismissal, to a colleague who, leaving aside her formal classification, was an “ordinary administrative employee fully integrated into the production unit” of the company.

In addition, it was found out during the investigation that the decision to dismiss the employee had been taken following the latter’s refusal to accept – with regard to a novation agreement proposed by the Company – a change in her classification and the consequent reduction in her salary with regard only to the extra allowance over minimum pay.

Therefore, according to the Court of Cassation, the assessment as to the existence of a retaliatory reason for dismissal had been made by the territorial court based on a congruent reasoning that was capable of establishing a correlation between the employee’s rejection of the company’s proposal and her dismissal, noting that the alleged outsourcing had not made the position held by the employee unnecessary, given that her duties, right from the day after termination, had been assigned to another employee.

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