A new article drafted by Angelo Zambelli on the latest judgment of the Italian Supreme Court on Dismissal for objective justified reasons is now online on Lexology.com e Leglobal.law.
Italy: Dismissal for objective justified reasons: the latest judgment of the Italian Supreme Court
Under the Italian legal system, before serving an individual dismissal due to objective justified reasons, the employer is required to assess the possibility to relocate within the company’s organisation the redundant employee in similar positions/jobs of the same level and, according to the most recent case law, even of a lower level.
The latest judgment rendered by the Italian Supreme Court (no. 12132 of May 8, 2023) has further extended this obligation (the so-called “repêchage” obligation).
Indeed, the Italian Supreme Court has established that the employer, when evaluating the relocation of the employee must also consider those positions within its organization that even though they are at the moment of the termination covered, will become available in a period of time close to the dismissal’s date.
The Italian Supreme Court gives an extensive interpretation of the obligations of fairness and good faith that shall characterize the employment relationship even in the termination’s phase. In this context, it deems that the company’s picture at the time of the dismissal does not constitute a congruent perimeter within which the employee’s relocation may be assessed.
The repêchage obligation must also concern jobs/positions “soon” available.
In the case examined by the Court, the “available jobs in the near future” were those of two colleagues of the concerned employee, with fungible job profiles compared to those performed by the terminated employee, who at the time of dismissal had already resigned and were on notice.