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.

With its judgement no. 1091/2017, the Court of Milan has ruled again on the expiry of the limitation period of wage claims, in light of the modifications introduced by Law no. 92/2012 (so-called Fornero Law) to Article 18, Workers’ Charter. In particular, the judgement at hand reiterated that following the entry into force of the Fornero Law, the expiry of the limitation period of wage claims shall be suspended until termination of employment, also in regard to the contracts subject to the regime of novel Article 18, Law no. 300/1970. In fact, the court of first instance has underlined that “it behoves to acknowledge that the entry into force on 18 July 2012 of Law no. 92/2012, which has modified the real guarantee referred to in Article 18, Workers’ Charter, providing, in par. 5 of said Article, for a few instances in which, even in regard to an illegitimate dismissal from work, only a compensatory guarantee remains, with no possibility for the employee to be reinstated, in a similar way to obligatory guarantees (even though with higher compensation amounts)”; consequently, employees may “incur in the fear of dismissal when asserting their rights, in light of a diminished resistance of their stability.” This judgement is consistent with two substantive rulings passed in 2016 by the Court of Milan and by the Court of Turin.