The Court of Cassation, with judgement no. 21438 dated 30 August 2018, ruled again on the subject matter of dismissal for cancellation of the job position. More specifically, a worker – among other things – had filed an opposition against the dismissal imposed on him, seeking annulment thereof, as he considered it retaliatory, and consequently, payment of a non-reinstatement allowance, equal to 15 monthly pays of the last comprehensive salary actually received, and the payment of damage in the amount of 14 monthly pays of his last actual comprehensive salary. In reviewing the judgment of the court of first instance, the Court of Appeal found the dismissal unlawful, even though in its opinion it was not discriminatory. This decision was due to the fact that the company had not proven the reasons why the petitioner had been dismissed, while other employees that performed the same duties and had less seniority than him had not been dismissed. Since the Court of Appeal found that the prerequisites for the actual protection regime did not apply, it condemned the employer to pay an allowance in the amount of 6 monthly pays of the last comprehensive salary actually received by the worker. In filing an appeal against this decision, the company argued, among other things, that in the course of the proceedings it had proven that (i) the closing of the division had been necessary due to critical circumstances of the company and (ii) in continuing the business, the company had preferred the use of semi-finished products, thus saving another sector. Therefore, in its opinion, the workers employed in such sector could not been dismissed, since the petitioner had never worked in it and lacked the necessary skills. The Court of Cassation found the above ground inadmissible on the assumption that the court of first instance had established, on the basis of preliminary findings and the submitted documents, that “there had been a mere reduction in the production activities” and that the company “had deemed it proper to privilege certain sectors without suppressing any”. Also, the company complained about the violation and wrongful application of Article 5, Law no. 223/1991, because the dismissal was not due to a reduction of equivalent and replaceable personnel but to the suppression of a sector of activities, whose one and only employee was the appellant. The Court of Cassation also rejected the above complaint. On this point, making reference to previous rulings of its own, the Court of Cassation first noted that the cause for dismissal should be evaluated by the employer, without the court having a say so on the selection of the company’s management criteria, in accordance with Article 41 of the Constitution. The Court of Cassation then reiterated that a dismissal for justified objective reasons is considered lawful if the conditions referred to in Article 3, Law no. 604/1966 are met. This means: a) cancellation of the division/job in which the worker is employed, without necessarily suppressing all duties previously assigned to him/her; b) attribution of the cancellation to the employer’s plans and choices that affect the undertaking’s structure and organization – the adequacy and appropriateness of which cannot be questioned by a court of law, provided they are real and not simulated; and c) impossibility to employ the worker in other duties. The Court of Cassation also remarked that the burden of proving the satisfaction of these pre-requisites rests on the employer, who can fulfil it also by way of presumptions. The worker’s obligation to prove the existence of assignable positions is expressly excluded. Also, according to the Court, if the justified objective reason consists of a generic reduction of homogeneous and replaceable personnel, neither the normal criterion of the job position to cancel nor the criterion of the impossibility to carry out a repêchage are applicable, because the former is no longer necessary and because all job positions are equivalent and all workers are potentially dismissible. Nonetheless, the choice of the worker to dismiss is not at the absolute discretion of the employer, which is however limited by the prohibition to discriminate and by the rules of correctness and good faith, pursuant to Articles 1175 and 1375 of the Italian Civil Code. On the matter, the Court of Cassation remarked that the judges discussed the issue of how to identify in practical terms the criteria that allow deeming said choice compliant with the aforementioned principles, deeming that it is necessary to refer, even while taking into account the diversity of the respective regimes, to the criteria established by Article 5 of Law No. 223/1991 governing collective dismissals, where the trade union agreement fails to indicate alternative criteria for such choice. Consequently, according to the Court of Cassation, in the case at hand, by the same token, the criteria of dependent family members and seniority level can be taken into consideration, given that the technical/productive and organizational needs are irrelevant, in the light of a full replaceability of workers. In other words, according to the Court of Cassation, even if several positions are interchangeable, where the criterion of the impossibility to carry out a repêchage does not apply, the employer should select the worker to dismiss on the basis of correctness and good faith. These principles – the Court went on to say – can be considered fulfilled if the employer, in selecting the workers to dismiss, keeps into account the criteria applied in collective dismissals, that is to say, the presence of dependent family members and seniority.

With its judgement no. 20761/18, the Court of Cassation, Labour Division, returned to rule on dismissal for exceeding the sickness period, confirming its opinion on the potential formal faults that may affect its validity. The ruling originated from the appeal brought by a worker against his dismissal for exceeding the sickness period, whose lawfulness had already been upheld by the courts of the previous two degrees. One of reasons at the basis of the appeal is that the worker had complained about the false application of the applicable rules, as the employer had failed to notify the employee of the imminent expiry of the sickness period. According to the employee, such failure resulted in the impossibility for him to exercise the right – guaranteed by the national collective bargaining agreement – to request a period of unpaid leave on expiry of such term. The Court of Cassation confirmed the lawfulness of the dismissal, clarifying and reiterating that there is no obligation from the employer’s part to notify the employee of the imminent expiry of the maximum sickness absence days, and that such a burden would not exist extensively, not even on the basis of the principles of correctness and good faith. In fact, the Court noted how such notification “would be used in truth to allow the employee to implement certain actions such as request for paid vacation or leave, essentially by-passing the verification of its unsuitability to carry out his obligations”, the latter being sufficient to exclude such information obligation. The Court of Cassation therefore took this opportunity to reiterate its orientation also in relation to other profiles pertaining to this type of dismissal. In fact, on one hand, the Court of Cassation remarked that Sundays and holidays, not covered by a medical certificate, although included between separate sickness periods, should be included in the calculation of the sickness period, unless proof is given of the actual interruption of the sickness in those days. On the other hand, the Court of Cassation noted that the obligation to communicate the reasons at the time of the dismissal for exceeding the sickness period does not require the indication of each separate leave, as it is sufficient – as happened in the case at hand – to indicate the full duration of the leaves. A dismissal for exceeding the sickness period is not equivalent to a dismissal for cause and, therefore, it is improper to speak of a confutation of leaves in this case. In the opinion of the Court of Cassation, the employer can indicate the total number of absence days occurred over a given period of time, without prejudice to the obligation for the employer, in case of legal proceedings, to submit and substantiate the elements that brought to the employer’s decision.

The Court of Cassation with ruling No. 15523/2018 had the opportunity to clarify, once again, a few important cases concerning a dismissal ordered upon conclusion of disciplinary proceedings pursuant to art. 7 of the Law No. 300/1970. The judges of the Court of Cassation, in fact, returned to explore the heavy and controversial matter of linking the disputed fact with the letter starting the disciplinary proceeding to a different disciplinary assumption. On the matter, the Court reminded how said possibility is not excluded since it would exclusively be related to a different take on the same fact subject matter of the dispute, relating to which the employee had the opportunity to exercise his right of defence. On the contrary, it was also restated how the employer does not have the possibility to bring forth new and/or additional factual circumstances respect to those subject matter of the dispute, since this conduct would irremediably damage the right of the defence of the worker who would not have, in this manner, the possibility to present his own reasons related to said circumstances. In this manner, the Court of Cassation confirms its opinion according to which it is necessary full matching between the disputed facts and the ones at the root of the dismissal tied to the disciplinary proceedings.

The Court of Cassation, with ruling No. 19731 dated 25 July 2018 has recently expressed its opinion on the repêchage obligation. In the case in question, an employee had filed a law suite against the dismissal ordered by the company due to closing down of the department where he worked, stating that the dismissal was unlawful for breach of the repêchage obligation. This since in his opinion (i) the employer company after the dismissal had continued hiring on a regular basis and with repeated staff leasing contracts and (ii) the staff leasing contracts reported reasons that did not match the true tasks then carried out by the leased staff, tasks that the employee had made himself available to carry out. In fact, confirming what the Judges having jurisdiction had ruled, the Court  of Cassation rejected the appeal of the employee and pointed out that the employer, subjected to a long lasting period of difficulties in getting results and financial difficulties, had the right to reduce its staff. And according to the Court of Cassation, it can do so by redistributing to the residual personnel the tasks previously assigned to the dismissed employee or making use, for strictly limited time periods, to external resources hired with fixed term contracts or staff leasing contracts. In addition, according to the Court of Cassation, the use of overtime work by the employer after the employee’s dismissal, also pointed out by the employee in support of his own claim, is explained according to said principle. This since the greater amount spent for the overtime remunerations of employees asked to work overtime are without a doubt lower than the costs associated to maintain a person hired under an open term contract.

The Court of Cassation, with judgement No. 25147/2017, stated that dismissal of an employee who copies confidential corporate data on a personal pen drive, without the employer authorisation, is legitimate, even if this information is not disclosed to third parties.  This is because the violation of contractual duties also occurs when a particular conduct, even if it does not result in actual damage, has intrinsic potential to become detrimental to the interests of the employer. The Court deemed the dismissal legitimate since the conduct contested to the employee was to be considered as censurable pursuant to the provisions of Article 52 of the CCNL for the chemical sector applied in the company. Specifically, the aforesaid article includes among the cases punishable by dismissal: theft, voluntary damage to corporate assets and theft of drawings, tools and sheets owned by the company. According to the Court of Cassation, the simple copying of data falls within these cases, having identified in the behaviour of the worker a conscious conduct, respect to which the lack of IT measures by the employer to protect the data was completely irrelevant.