_Thoughts on dismissals for objective justified reasons and retaliatory terminations.

By Sharon Reilly and Silvia Fumagalli

In a recent ruling (no. 9468 of April 4, 2019), the Court of Cassation, after providing further clarifications on dismissals for objective justified reasons, examined an alleged case of retaliatory dismissal; such decision is particularly interesting for employers, since it is not uncommon that employees claim to be victims of retaliatory terminations to obtain reinstatement.

In the case examined by the Supreme Court, the Court of Appeal of Bari had declared that the plaintiff’s dismissal was retaliatory: according to the lower Court, the company, after being obliged to withdraw the plaintiff’s first dismissal, had started a process of internal reorganization with the only intent to eliminate his job position and, at the same time, the employer could not provide any evidence of the fact that such process was necessary to face a financial crisis.

However, the Supreme Court overturn the decision of the Court of Appeal affirming that, even without a situation of crisis, the dismissal for objective justified reason can be lawful: the employer shall only prove that the reasons grounding the dismissal, concerning the company productivity and the organization of the work (including those addressed to promote a better managerial efficiency), lead to a modification of the company’s organizational asset involving the elimination of a specific job position.

The Supreme Court, one more time, has gone against the previous settled case law, which claimed that dismissals for objective justified reasons must be grounded on the company’s negative trend, which shall be proved by the employer.

The Court of Cassation confirmed that, under art. 1345 civil code, the dismissal is held to be void when the retaliatory intent was the only and exclusive reason grounding the termination of the employment, regardless of the reason formally alleged by the employer: in short, the dismissal is lawful when the employer can prove the existence of an objective justified reason of termination.

First, the Judge shall verify the existence of the grounds of the dismissal alleged by the employer and, if such grounds do not exist, or the employer could not prove, it shall proceed to verify if the termination was lawful or not.

The employee shall be entitled to reinstatement, as set for under article 18 Workers’ Statute, if the grounds for the dismissal alleged by the employer do not exist and the dismissal was only based on retaliation.

Otherwise, the dismissal will be lawful and shall not have any consequence for the employer.