By Order of 13 November 2023, no. 31561, the Italian Court of Cassation ruled that, to fully comply with the repêchage obligation (obligation to relocate), it is necessary to assess whether hires made following the termination for justified objective reasons are of the same level of classification as the dismissed employee.
An employee, employed as a cashier in a bar, challenged her dismissal for abolition of her position.
Following the first instance judgment, in which it was ascertained that the termination was unlawful, the employer appealed.
The Territorial Court, reversing the ruling of the court of first instance, held that the dismissal was lawful. The court based this decision on evidence not only of the abolition of the job of cashier, but also of the fact that the worker had always and only performed the duties of cashier, having never performed duties as a counter or table attendant, tasks that were subsequently assigned to newly hired staff.
The judges of second instance also specified that “the fact – which is completely incidental and random – that multiple qualifications are placed in the same level of classification by the collective agreement is of no relevance. This allocation, in fact, is relevant for other purposes, i.e. to identify the regulatory and remuneration regime of the employment relationship of the employees thus classified, but it is completely <neutral>, i.e. irrelevant, for the purposes of the interchangeability of the related tasks”.
The Court of Appeal’s decision was appealed by the employee on several grounds.
The Italian Court of Cassation – accepting the appeal brought by the employee – ruled, preliminarily, that the employer, in fulfilling its repêchage obligation, cannot disregard careful consideration of the national collective bargaining agreement (contratto collettivo nazionale di lavoro, ‘CCNL’) applicable to the employment relationship.
Indeed, according to the judges of the Italian Court of Cassation, in the case of dismissal for justified objective reasons, and in the light of the new Article 2103 of the Italian Civil Code, the reference to the levels of classification described by a collective agreement is a relevant factor.
The Court specified that the CCNL “constitutes a factor that the judge will have to assess to ascertain whether or not the person who was dismissed was, in fact, able – on the basis of objectively verifiable evidence adduced by the employer and having regard to the specific training and entire professional experience of the employee – to carry out the duties of those who were hired ex novo, even if it is at the same or lower level”.
The Court of Cassation, finding no such assessment in the contested judgment on the merits, therefore upheld the employee’s appeal.
Other related insights:
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 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 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 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:
By Order no. 27353 of 26 September 2023, the Court of Cassation ruled on the case of an employee
who had been dismissed for stealing company assets of low value. The employee challenged his
dismissal and brought a legal action asking to be reinstated back to work. The Court, while ruling
out the annulment of dismissal, held that the dismissal was disproportionate to the modest value of
the goods stolen by the employee and sentenced the Company to pay compensation to the
employee. The Court of Cassation, after hearing the case, confirmed that, since the charge (i.e.
theft) fell within those for which the applicable National Collective Bargaining Agreement provided
for dismissal, the employee’s dismissal could not be annulled. However, since the sanction imposed
was clearly disproportionate to the offence committed, the Supreme Court upheld the decision of
the trial judges, holding that compensation under Article 18(5) of Law no. 300 of 1970 was
applicable in the case at hand.
In judgment no. 20239 of 14 July 2023, the Court of Cassation dealt with the issue of
dismissal due to unsuccessful trial period, in a case in which the probationary period agreement was
null and void. The Court ruled that workers subject to the so-called “rising protection” legislation
(i.e., workers hired after 7 March 2015) are only entitled to compensation, and not to
reinstatement to work. In support of its decision, the Italian Supreme Court noted that the dismissal
reform introduced by the so-called Jobs Act has limited the remedy of annulment of the dismissal to
disciplinary dismissal, and specifically, only to the case that the inexistence of the material fact
with which the worker is charged is proved in court; and it has therefore concluded that given the
residual nature of this remedy in the Jobs Act legal framework, dismissals notified during the
probationary period under an invalid agreement give rise only to the monetary compensation
remedy.
With Order No. 26697 of 21 September 2023, the Italian Court of Cassation ruled that an employer can deny the holidays requested by a worker to avoid exceeding the limit of the job retention period only in the event that there are actual and genuine obstacles.
The facts of the case
The matter originated from the dismissal of a worker for exceeding the job retention period. The worker challenged the dismissal by providing evidence that she had asked the employer, with a communication sent and received by the company before the job retention period for the position had expired, to use accrued and untaken holidays.
With the same letter, the worker also informed the employer of her intention to request, once the holiday period ended, a period of unpaid leave if she were still unable to work. The employer rejected the request to use the holidays, granting the worker a period of unpaid leave of 120 days, and also informed her that the accrued and unused holidays would be paid on dismissal if, after the period of unpaid leave, the worker was still unable to resume work.
On expiry of the period of unpaid leave authorised by the Company, given the continuation of the employee’s illness, the employer notified the worker of dismissal for exceeding the job retention period.
The employee took legal action challenging the dismissal. In the proceedings, the Court accepted the worker’s requests, ordering the company to reinstate her.
On this point the Court of Appeal confirmed the judgment given in the first instance proceedings and found that the Company had unlawfully rejected the request made by the employee before exceeding the job retention period seeking to use accrued holidays to avoid exceeding the period.
The appeal to the Italian Court of Cassation and the latter’s judgment
The Company appealed against the judgment to the Court of Cassation.
The Italian Court of Cassation – in confirming the second instance judgment – clarified that a worker who is absent due to illness has the right to request the use of accrued and unused holidays, with the aim of suspending the running of the job retention period.
According to the Court of Cassation judges, this right does not give rise to a corresponding obligation on the employer to accept the request where there are organisational reasons that would prevent it.
The Court also reiterated the need for the reasons advanced by the employer to be actual and genuine, with a view to balancing the opposing interests and to comply with the general clauses of fairness and good faith.
As the latter requirement had not been satisfied in the present case, the Italian Supreme Court therefore rejected the appeal brought by the Company.
Other related insights:
