DLP Insights

Court of Cassation: dismissal for justified subjective grounds may also be changed by court, even by the court of appeal

Catégories: DLP Insights, Case Law

With its judgment No. 21 of 4 January 2016, the Court of Cassation has stated that the so-called omitted ruling flaw shall be triggered for the judge, also the court of appeal judge, who declares unlawful a dismissal served for cause without the court first checking the feasibility of turning it into a dismissal for justified subjective grounds. In particular, the Supreme Court of Cassation holds that the just cause and the justified subjective grounds for dismissal are just mere legal definitions of behaviours which are equally fit to justify the termination of the employment and this, in general, entitles the judge to turn a dismissal for cause in terms of dismissal for justified subjective grounds. But there is more. As also stated by the Court, the judge, also the court of appeal judge, would be automatically requested to redefine the dismissal, provided that the necessary conditions are met. The above since the minor claim concerning the ascertainment of the termination of the employment for justified subjective grounds is deemed to be included in the claim having as scope the ascertainment as to whether the termination of the employment for cause is lawful. The Court of Cassation thus confirmed what had already been ruled on the subject matter with a prior judgment of 2008.

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