In a recent judgment (No. 18547 of July 8, 2024), the Italian Supreme Court ruled that a dismissal for justified objective reason, ostensibly motivated by a “fictitious” company crisis, must be deemed retaliatory when it is actually prompted by the employee’s refusal to convert their full-time employment into part-time.

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The Case Examined by the Supreme Court

The Supreme Court’s ruling stems from a case involving an employee’s challenge to a dismissal for justified objective reason initiated by his former employer. The Court of Catanzaro, upholding the employee’s primary appeal and rejecting the company’s cross-appeal, found that the dismissal lacked the purported objective reason (namely, the “fictitious” negative performance of the butcher department to which the employee was assigned). The absence of this reason exposed the exclusively retaliatory nature of the dismissal, following the employee’s refusal to convert his full-time employment to part-time.

Consequently, the second instance judge ordered the company to reinstate the employee and compensate him for damages equivalent to his last salary, used for calculating severance pay, from the date of dismissal to the date of actual reinstatement, along with additional benefits, social security contributions, and costs.

The company subsequently appealed to the Supreme Court, arguing that the judge had erroneously granted full reinstatement protection, supposedly applicable “only when the dismissal is discriminatory or in other cases of nullity expressly provided by law, which does not include dismissal following the refusal of part-time”.

The Supreme Court’s Judgment About Nullity of Reliatory Dismissal

In its ruling, the Supreme Court clarified that the judge had not declared the dismissal null because it was prompted by the employee’s refusal to convert his full-time employment to part-time. Rather, the dismissal was fictitiously motivated by a company crisis, while its true exclusive reason was the employee’s refusal to convert his full-time employment to part-time.

According to the Supreme Court, the distinction between the two scenarios is that:

• A dismissal motivated by the employee’s refusal to convert their full-time employment to part-time must be considered unjustified under Article 8, paragraph 1, of Legislative Decree No. 81/2015.
• Conversely, “a dismissal following the refusal of part-time, even if disguised as other reasons like justified objective reason (due to an alleged, non-existent company crisis), must be deemed retaliatory as it is driven by the exclusive and determining purpose of circumventing the prohibition under Article 8 of Legislative Decree No. 81/2015 through an unjust and arbitrary reaction to a legitimate conduct of the employee, attributing a retaliatory character to the dismissal”.

As a result, the Supreme Court upheld the ruling of the Court Of Catanzaro, confirming the dismissal as null and applying the reinstatement protection under Article 2 of Legislative Decree No. 23/2015.