Italy: The Dismissal With A Generic Notification To Employee Is Unlawful

Last Updated: 15 October 2012
Article by Batini Colombo Saottinis' HR Team

According to the Italian Supreme Court the letter of dismissal/firing delivered to an employee by the employer has to include with a high level of accuracy facts that are considered a severe violation of disciplinary duties.

The justified dismissal is unlawful if the letter of reprimand is too generic and characterised by a lack of specific facts that constitute an effective violation of the disciplinary duties of the employee, since this doesn’t allow this last one to properly exercise his defence right under the article 7 of the Law nr. 300/1970 (Workers’ Statute).

This is the statement of the Italian Supreme Court included in the sentence nr. 17337 issued yesterday October 11th 2012.

In the specific case, an employee, framed as a Manager (Italian “Quadro”) head of the IT Department of a service company, has been justified dismissed with the charge of negligent implementation of a corporate information technology project. Following the opposition promoted by the employee, both in the first level of judgment and in the subsequent appeal, the judges confirmed the unlawful of the dismissal, for violation of art. 7 of the Law nr. 300/1970, with consequent order to reintegrate the employee in his job and damages refund to the same.

In particular, the judges of the first level deemed that the reprimand letter delivered to the employee was too unspecific and did not contain a sufficient detailed description of facts incurred, allowing the employee to an effective defence.

Moreover, in the appeal’s sentence judges underlined that implementation of the IT system as it was originally planned, both for its time-line and related costs budgeted, could not be charged to the Manager, being him an employee, therefore subject to a “means obligation” (therefore a performance ruled by the diligence criterion under articles 1176 and 2104 if the Italian Civil Code), and not to a “result obligation”, proper of the self-employment, which has as object the achievement of a specific result. This means that the employee could not be charged the liability of the missed respect of the time-line and the over-budget suffered by the company.

In the recourse to the Supreme Court the employer complains, among the principal reasons, a misunderstood interpretation of the reprimand letter by the appeal’s judge, who seemed to consider the only part of the same letter pertaining the behaviours of the employee characterised by “poor open-mind and availability” toward suppliers of IT items, as well as negligence in managing the project and instructing co-workers and subordinates. In particular the judge seemed not to consider the final part of the letter, where the company claimed to the Manager to fact that he hadn’t promptly communicated is inability to achieve the conclusion of the project.

For the Supreme Court, the reasons given by the employer are unground and therefore the recourse has to be rejected. First of all, the Supreme Court’s judges outline as, being this a disciplinary dismissal, the employee has to be put in n the conditions set by art. 7 of the Law nr. 300/1970, to exercise his right to defence. Therefore the reprimand letter needs to have “specificity” characteristics, that are identified in necessary and essential indications about facts that form a violation of disciplinary rule, or in any case behaviours that go against the employee’s duties of diligence (art. 2104 Civil Code) and loyalty (art. 2105 C.c.).

In addition, the Court outlines that the verification of the existence of “specificity” is an obligations for the first level judges, while the judges of the Supreme Court are required just to verify the cogency and coherence of the appeal’s decision. The missed achievement of the final result can’t be argued by the employer.

In this sense, the exam of the reprimand letter by the appeal’s judge is operated on the whole text - in fact entirely reported by the same - and not only a part, allowing a logic and coherent assessment of the missed indication of specific behaviours that constitute a violation of disciplinary duties (and the diligence one in particular), so severe to determine the employment relationship termination.

At the end, the Supreme Court deems correct also the conclusion under which the argument moved by the employee on the missed achievement of the final result can’t be referable to an employee, normally charged with an “obligation of means”.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Batini Colombo Saottinis' HR Team
 
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