The Court of Cassation, with judgement dated 25 June 2018 No. 16702, issued a new ruling on the dismissal for justified objective reasons and related penalty consequences. In particular, the Court of Cassation noted that the negative trend of a company represents a factual requirement that the employer must necessarily prove and the judge accept. This is because it is sufficient that the reasons related to the production activity and the organisation of work, among which it is not possible to exclude those aimed at greater management efficiency or to an increase in corporate profitability, lead to an effective downsizing of the organisational set up through the removal of a specifically identified job position. Instead, whenever the dismissal is justified with the need to face unfavourable financial conditions, or significant extraordinary expenses and in court it is verified that said reasons do not actually exist, the dismissal is deemed unjustified due to the confirmation of lack of truthfulness and on the pretence of the reasons brought forth by the employer. In this case, however, said situation would not automatically lead as a penalty consequence to the application of the actual protection of the job position. Essentially, verification of the requirement of “obvious non-existence of the fact supporting the dismissal”, as per paragraph 7 of article 18 of the Workers’ Statute, concerns both the legal prerequisites of the dismissal for justified objective reasons and thus the reasons related to the production activity, the organisation of work and its normal implementation as well as the impossibility to assign the employee to another position. Therefore, the “obvious non-existence” must be referred to a clear, obvious and easily verifiable (from an evidence standpoint) lack of the aforementioned prerequisites.
