The financial crisis is having a significant impact in the field
of employment, with an increase in dismissals for an objectively
justified reason (giustificato motivo oggettivo) as
employers seek to reduce their business costs. This brief note
offers practical advice for employers in light of recent decisions
on this issue.
As a result of the financial crisis, companies under pressure to
reduce their business costs are frequently faced with the need to
eliminate employment positions, leading to the termination of the
employees in such positions.
Employers must seek to avoid the risk of such dismissals being
ruled unfair or unjustified in the event of legal proceedings. In
order to do so, the employer must be able to demonstrate to the
labour court that the dismissals are a consequence of the
company's economic situation. This requires the employer to
maintain consistent conduct for a certain time after a dismissal.
In particular, the employer should not hire new employees during a
In Decision 11720, which was issued on May 20 2009, the Supreme
Court stated that hiring a new employee eight months after a
dismissal does not affect the fairness of the dismissal.
Moreover, Italian law provides that in a case of dismissal for
an objectively justified reason, the employer must evaluate whether
the employee can be employed in another role within the company
before it decides to terminate the employee. This is termed the
'duty of repechage'.
The evaluation must take account of the duties and skills of the
employee to be dismissed and must seek to find and offer him or her
a similar role within the company, if such a role is available. In
particular, the employer must determine whether all similar roles
within the company are held by permanent employees - a condition
clarified in a decision issued on January 15 2009 by the Labour
Division of the Court of Rome.
In Decision 6552, which was issued on March 18 2009, the Supreme
Court specified that an employee - in the context of such a
dismissal - may choose to accept a new role within the company with
lesser duties. Therefore, an evaluation must take into
consideration possible roles at a lower level that may be available
within the company.
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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