As is well known, under Italian Law, dismissal for an objective justified reason is the one due to facts or events of an organizational or economic nature, which affect the company’s reality and determine the employer’s need to terminate the employment relationship.
In this context, for the purpose of the dismissal lawfulness, the employer shall prove the abolition of the redundant job position and the impossibility to appoint the redundant employee to different a role (the so-called duty of repêchage).
Coming to possible sanctions provided for the case of illegitimate dismissal, Article 18 of the Workers’ Statute, states that the judge can apply the reinstatement only when «the fact grounding the economic dismissal manifestly does not exists».
The major case law, originally considered that only the inexistence of the reasons grounding the dismissal (i.e. economic crisis or reorganization) or the absence of the abolition of the job position could be considered as “facts manifestly not existing” leading to reinstatement.
According to this interpretation, repêchage was considered only as a “secondary” duty of the employer, whose violation could simply be sanctioned with an indemnity and not with reinstatement.
In contrast with this approach, through recent Ruling no. 10435 filed on May 2nd, 2018, Court of Cassation redefined both the notion of the repêchage duty and the sanctions provided for the case of its violation.
First, the Court made it clear that the duty of repêchage – together with the abolition of the job position – had to be considered as a constitutive element of the economic dismissal and so properly as a “fact” grounding its existence and legitimacy.
Therefore, according to the new Court approach even when the employer violates the repêchage duty the judge may deem “the fact” grounding the economic dismissal “clearly not existing», with consecutive possible application of the sanction of reinstatement.
Furthermore, the Court explained the criteria to be applied by the Judge in order to decide whether ordering the reinstatement or not.
The Court confirmed the application of reinstatement only when the absence of the fact grounding the dismissal (and so the violation of the repêchage duty) is “manifest”, meaning in case of “evident and easily verifiable absence of the requirements grounding the dismissal, allowing to show that the dismissal was clearly a pretext”.
In such a case, according to the Court of Cassation, the judges shall decide to grant damages instead of reinstatement when “reinstatement would be extremely onerous/expensive for the employer, according to the circumstances of the single case”.
In conclusion, in light of the most recent case law approach on the matter, the company that wishes to abolish a job position shall evaluate very well its structure before serving the dismissal, paying particular attention to the consequences for the case of the violation of the repêchage duty.