Italy: The Reasons for Termination are Immutable for Dismissals Based on Economic Reasons

The principle—already consolidated in the case of disciplinary dismissals – of the immutability of the reasons grounding the employment termination also applies to dismissals for economic reasons (i.e., dismissal for objectively justified reasons), with the consequence that, even in the case of suppression of a job position, the employer cannot provide as justifications for the dismissal “facts that are different” from those indicated at the time the dismissal was served. This was stated by the Court of Appeal of Venice in its judgement of 22 April 2024 in relation to the case of an employee with the duties of “Prevention and Protection Service Officer” and “Environmental Management Officer,” whose dismissal was grounded on the suppression of the position of “Prevention and Protection Service Officer” only, with the outsourcing of all the relevant activities.

 

The Court of Vicenza, confirming the decision issued in the summary phase of the proceedings, rejected at first instance the challenge of the dismissal based on the circumstance that the outsourcing to an external professional of all the duties the employee previously performed, including both of “Prevention and Protection Service Officer” and those (not mentioned in the dismissal letter) of “Environmental Management Officer” had only become known during the inquiry before the Court, whereas the company had justified the dismissal only on the outsourcing of the activities of “Prevention and Protection Service Officer.” In particular, the Court of first degree, considering inapplicable to the dismissal for objective justified reasons “the principle of immutability of grounds,” had held that it was totally irrelevant that the dismissal letter did not refer, also, to the duties of “Environmental Management Officer.” The decision was, therefore, challenged before the Court of Appeal of Venice by the employee, who contested the admissibility of the inquiry on “circumstances unrelated to the suppression of the position of Prevention and Protection Service Officer, the only organizational reason grounding the expulsive measure.”

 

The Court of Appeal of Venice, for its part, clarifies preliminarily that the principle of the immutability of the reasons communicated as grounds for dismissal must also apply to cases of dismissal for objectively justified reasons. It follows that the employer, once the termination due to the suppression of the position has been served, can only indicate “confirmatory or supplementary circumstances” of the facts justifying the dismissal. In this case, the Court continues, since the activities relating to environmental management are “ontologically distinct and autonomous” from those of “Prevention and Protection Service Officer,” the suppression of the position of Environmental Management Officer is an “entirely autonomous and new circumstance,” which changes, but is neither supplementing nor confirming, the facts on which the dismissal was based. Therefore, the justification of the dismissal by way of also outsourcing the duties of “Environmental Management Officer” opposes the principle of immutability of the grounds of dismissal, with the result that, according to the Court of Appeal of Venice, the judgment appealed against by the employee is “erroneous” and the evidence admitted at first instance is “inadmissible.”

Key Action Points for Human Resources and In-House Counsel

Practical Points

• The principle of immutability of the grounds for dismissal, which is well consolidated in the case of employment termination for disciplinary reasons, is also valid for redundancy (i.e., dismissal for objectively justified reasons).
• Therefore, even in the case of suppression of a job position, if the employer provides at a later stage as justifications for the dismissal “facts that are different” from those indicated in the dismissal letter, the dismissal can be easily challenged.