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.