The Court of Cassation, with judgement No. 19655 dated 10 August 2017, has confirmed the choice of an employer to dismiss one of its employees in order to increase management efficiency and business profit, even if lacking a [financial] crisis situation. In the case in hand, the employer decided to remove a department when a specific job order failed to materialize, in order to maintain unaltered the business profit. This choice, in the opinion of the competent Court, cannot be argued. The consequent dismissal, according to the Court, must be deemed lawful since it was for reasons related to the productive activity, work management and normal operation of the activity. Therefore, once having verified the effectiveness of such reorganization and the consequent removal of the job position, dismissal had to be considered fully valid. This judgement falls within a case-law trend that is becoming increasingly more common (see judgements No. 25201/2016, 25197/2013, 7474/2012 and 15157/2011), even if it was not issued unanimously (see judgement of the Court of Cassation No. 14871/2017 according to which in order to have economic dismissal, in addition to corporate reorganization, it is also necessary to prove the effective need to reduce costs to face unfavourable conditions).

The Court of Cassation, with judgement No. 20130 dated 17 August 2017, has once again voiced its opinion on the proportionality of the disciplinary sanction against an employee with respect to the employee’s improper conduct pursuant to art. 2106 of the Italian Civil Code. In the case in hand, the dismissal impacted a member of the orchestra of a Foundation who had repeatedly missed verification exams due to an alleged psycho-physical condition, submitting, only in a few occasions, medical certificates. The Foundation had, therefore, ejected the orchestra member upon result of a disciplinary proceeding on the basis of the fact that the member, missing the verification exams, did not allow verifying that he/she maintained the professional requirements necessary for participation into the orchestra. In this respect, the Court of Cassation, mentioning its previous judgements, restated that “on the matter of disciplinary dismissal (…) the principle of proportionality for the penalty assigned for the violation calls for the judge to verify the severity of the fact under the objective and subjective point of view, since the latter can fall from a psychological standpoint under the element of fault as well as that of wilful default”.

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.

With its decision no. 15204 of 20 June 2017, the Court of Cassation intervened in the subject of the disciplinary dismissal of a senior executive without prior application of the procedure referred to in Art. 7 of Italian Law no. 300/1970. The Supreme Court referred to some recent pronouncements, including Plenary Sitting decisions (Cass. No. 2553 of 10 February 2015, Cass. Plen. Sit. No. 7880 of 6-30 March 2007) and clarified that “the procedural guarantees laid down under Art. 7 of Italian Law no. 300/1970 are an expression of the principle of general basic guarantees safeguarding all forms of disciplinary dismissal”, which is applied to all forms of subordinate employment, without making a distinction between employees whatever their position in the hierarchy. A different kind of interpretation would be in contrast with the courts’ decisions on the application of the law, because it would revive “an old and hackneyed notion of a senior executive as an alter ego of the entrepreneur”, and would be in breach of the principle of “audiatur et altera pars”, as a worker’s indefectible guarantee. The Court maintained, moreover, that senior executives are expressly included in the listings in Art. 2095 of the Italian Civil Code and, as such, are included in the regulations governing employees in general. By failing to implement the procedural guarantees referred to in Art.7, the resulting claims will be those laid down in collective labour agreements for unjustified dismissal (payment of an indemnity in lieu of notice and of a supplementary indemnity).