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Italy: Is It Feasible to Lawfully Dismiss the Employee Who Refuses to Change His/Her Working Time?

With judgement no. 30093 of 30 October 2023, the Italian Supreme Court deals with the delicate balance between the prohibition of the dismissal concerning the employee who declined hourly change protected by law and the occurrence of the objectively justified reasons entailed by such refusal, which may legitimately ground the termination.

In the case under exam, the Judges of the first instance rejected the challenge by the employee of the dismissal served following her refusal to convert the employment relationship from full-time to part-time. Indeed, the termination, based on the reorganization of the company together with the need to change the schedule of the working time, which entailed the impossibility of profitably using the plaintiff’s working performance, was considered lawful.

The Court of Cassation overturned the decision of the Courts of Merit. Above all, the ruling stated that the termination may not represent the automatic effect of the employee’s refusal and that the principles governing the discipline of dismissal for objectively justified reasons shall be correctly applied.

The judgement reminds us that the employee is legally granted protection to refuse the proposal to change the working time and, therefore, that the interests of the involved parties shall be properly balanced. In light of these considerations, the Supreme Court requires further elements than the mere occurrence of organizational reasons and the need to modify the working time.

Within this context, to be compliant with the mandatory rules on dismissals, the employer is burdened to prove: (i) the effectiveness of the economic and organizational needs; (ii) the causal link between the aforementioned needs and the dismissal; and (iii) the lack of an alternative occupational solution to be usefully proposed to the employee to avoid the dismissal.

In other words, about the third aspect, it shall accurately demonstrate the concrete impossibility of relocating the employee to another position or with another working time.

Along with this, the Court of Cassation concluded that in the case at issue, the plaintiff was unlawfully terminated since the company demonstrated neither the impossibility of keeping the scheme of the previous working time schedule nor the possibility of proposing a different distribution of the working time as an alternative to the dismissal.

This, for the Italian Supreme Court, led to the breach of the obligation of repêchage, which implied the unlawfulness of the dismissal served.

It is worth outlining that this decision has been rendered within a well-established case law. Another recent judgement (Supreme Court no. 29337 of October 23, 2023), rendered within a specular case, stated the same principles, emphasizing that the unfeasibility to assign different tasks/different working time and the employee being terminated for refusing to switch from part-time to full-time constitutes the key condition to serve a lawful dismissal.

Key Action Points for Human Resources and In-House Counsel

Practical Points

  • Employers shall be aware of the effective extension of the burden of proof that they have to face when dismissing an employee for objectively justified reasons following a refusal by the latter to adapt to the working time’s modification proposed by the company;
  • When dismissing an employee who declines to change his/her working time, it is crucial to prove not only the existence of the organizational need to change the working time but also the impossibility of otherwise usefully relocating the employee to another working time.
  • The impossibility to relocate the employee—refusing to accept the modification of the working time—shall be evaluated on the basis of the general principles of good faith and correctness, which constitute those mandatory criteria to be constantly fulfilled upon the employers’ decisions.