The Supreme Court of January 26th, 2022, no. 2246 once again discusses on the concept of “legitimacy” of the dismissal of the executive, stating that a single episode of intemperance is sufficient to justify the dismissal of the executive provided that it affects the bond of trust (moreover, more “stringent” between employer and executive in view of the high role assumed by the latter).
Before delving into the case brought to the attention of the Supreme Court, it should be noted that for the legitimacy of the dismissal of the executive is not necessarily required the existence of a just cause or a justified reason (objective or subjective), but it is sufficient the simple ” justifiability” of the same.
The notion of “justifiability” has been rewritten several times by case law. Most recently, see:
- Court of Appeal Milan, Lab. Sec., July 20th, 2021, no. 871: “On the subject of dismissal of executives, the broad notion of “justifiability ” differs from those of justified reason and just cause, since the “justifiability” includes any reason for termination that is not arbitrary, specious, not corresponding to reality. Therefore, its reason must be found only in the intent to get rid of the executive and not in that of pursuing the legitimate exercise of power reserved to the entrepreneur. The “justifiability” is therefore recognizable where there is a need, economically appreciable in terms of savings, the suppression of management, in the implementation of a corporate restructuring and does not emerge the discriminatory nature or violation of the principle of fairness and good faith, which is still the parameter on which to measure the legitimacy of the dismissal”;
- Court of Modena, Lab. Sec. , April 27th, 2021, no. 215: “The notion of “ justifiability ” of the dismissal of the executive, provided by some collective agreements for the purpose of recognition of an additional allowance, does not coincide with that of “just cause” or “justified reason” of the dismissal of the employee, but is much broader, and extends to include any reason for termination that excludes the arbitrariness, with the limits of compliance with the principles of fairness and good faith in the execution of the contract, and the prohibition of discriminatory dismissal.
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That said, the case submitted to the judgment of legitimacy originates from the expulsion measure adopted against an executive, following the externalization via e-mail (only one) of his regret to the employer.
In the case in point, the executive had sent an e-mail of the following tenor to the employer: “You have betrayed my trust and good faith and I do not know how long I will be able to go on putting up with this behavior of yours that I judge unworthy“.
The executive challenged the dismissal, claiming that it was illegitimate because it was not justified, and requested that the employer be sentenced to pay additional compensation, as well as compensation in lieu of notice.
After the favorable sentence obtained by the employee in the first instance, in which the lack of just cause was ascertained, the competent Court of Appeal confirmed the sentence of the Court of First Instance, specifying, however, that a statement of this kind, although not constituting a just cause for dismissal, enables the notion of “justifiability” to be deemed to have been established, taking into account the managerial role and the consequent intensity of the existing bond of trust, with consequent non-liability to pay additional indemnity.
With a single reason, the executive challenged the judgment of the second instance, observing how the Court of Appeal had erred in attributing to the notion of justification of dismissal only the quoted statement caused by an episode that had triggered a psychological reaction in the executive. According to the executive, the notion of justifiability of dismissal “constituted a notion of law, referable, as for just cause, to an elastic rule, was assessable in the legitimacy of the erroneous subsumption of the fact, since the justification cannot be integrated by a single episode of intemperance.
The Supreme Court, however, agreed with the arguments provided by the Court of Appeal, noting that the disturbance of the bond of trust within the employment relationship is more intense the higher the role of the employee (therefore, a fortiori, if it is a executive), all in accordance with an assessment of the conduct of the parties in the manner of the criteria of fairness and good faith.
To this end, the judgment of the Supreme Court of Cassation in comment recalled the case law of the same Court according to which for the purposes of justification of the dismissal of the executive, it is not necessary an analytical verification of specific conditions, but it is sufficient to make an overall assessment, which excludes the arbitrariness of the termination, as intimated with reference to circumstances likely to disturb the relationship of trust with the employer, within which falls the scope of powers granted to the executive.
It is impossible not to notice how the examination of the notion of justifiability of the executive’s dismissal once again under the lens of the case law has brought out the peculiarity of the executive relationship.