The Catania Employment Tribunal, by referring to a precedent from the Florence Tribunal, issued an order stating that dismissal of an employee via Whatsapp is legitimate. In the Court’s opinion, the means used by the employer, nevertheless, satisfied the need of a written format as it was an informative document which the dismissed worker, in this case, clearly considered to be from her employer as she promptly challenged it. On this point, the Tribunal mentioned that, according to the Supreme Court “an employer is not required to use fixed, specific formats” and that s/he can “also express his/her intention to dismiss a worker by an indirect method providing that it is clear”. In the same decision, the Tribunal also expressed its opinion about the challenge made by the worker regarding the lack of powers of the person who delivered the dismissal, as the disciplinary measure was signed by the technical manager and not by the employer. In rejecting this challenge, the Tribunal mentioned that the provisions under Art. 1399 of the Italian Civil Code, which provide for the possibility of retroactive ratification – but with the rights of third parties being safeguarded – of the contract that was concluded by a person lacking the powers of representation, can also be applied, pursuant to Art. 1324 of the Italian Civil Code, to unilateral contractual decisions such as dismissal.

In its decision no. 14871 of 15 June 2017, the Court of Cassation referred to its own case-law orientation and confirmed that, within the sphere of a dismissal due to objective just cause, in relation to the suppression of a post, it is not necessary for all the duties previously assigned to the dismissed employee to be suppressed, but that they may be differently divided up and assigned according to the “entrepreneur’s undeniable right of choice”. This was correct, in the opinion of the Court of Cassation, precisely because the notion of dismissal for objective just cause also includes the case of a company’s reorganisation aimed at its more economical management as decided by the entrepreneur “not simply to increase its profits but also in order to deal with unfavourable conditions (that may not be merely of a contingent nature) that may have a decisive effect on normal production, thus creating the actual need to reduce costs”. Basically, the Court cannot criticise the company’s management choices as its sole power is to control the effective existence of the motive leading to the dismissal decision, i.e. the actual effectiveness and non-spurious nature of the proposed reorganisation.

The Court of Cassation, by judgement No. 13799 dated 31 May 2017, intervened in the case of a dismissal for just cause issued against an employee who had posted on Facebook a few comments against her employer company as well as against her legal representative. In the specific case, the company was ordered at the time of the appeal to reinstate the worker and to pay a compensation equal to the remuneration from the date of dismissal to that of reintegration, but it responded by bringing the case to the Court of Cassation, alleging the non-application of the principle of the new art. 18, Law No. 300/1970, which recognizes reintegration protection only in case the material fact on which the dismissal was based does not exist. The company’s objections were deemed unfounded by the Court of Cassation, which, by recalling previous cases in the matter, stated that: “The non-existence of the disputed fact, referred to in art. 18 of the Workers’ Charter as amended by Law No. 92 dated 2012, art. 1, paragraph 42, includes the possibility that the fact did exist but that such fact be unlawful, therefore (even) in such case, the reintegration protection applies”. According to this principle, posting on Facebook opinions against an employer does not necessarily mean that it is unlawful and thus such to legitimise a dismissal for just cause.

The Court of Cassation, with judgement No. 14175/2017, stated once again that, for the purpose of calculating the employment demand and verifying the company’s reasons for dismissal, a single centre of interest to which the employment relationship must be addressed applies only in the case of fraudulent splitting demonstrated in the context of different companies belonging to the same group. In particular, the Court, remaining consistent with its earlier judgements, confirmed that in order for such fraudulent splitting to occur, the following requirements must apply: “(A) uniqueness of the organizational and production structure; (B) integration between the activities carried out by the various companies of the group and the related common interest; (C) technical and administrative-financial coordination such to lead to identify a single management entity that conveys the various activities of the individual companies towards a common goal; (D) simultaneous use of the work provided by the various companies, owners of distinct businesses, so that it is carried out in an undifferentiated and simultaneous manner in favour of the various entrepreneurs”. This means that only in the presence of these elements the limits of the context of the company where the dismissal took place apply and the group to which it belongs is considered, with all the consequences of the case.