ITA 
Published on Sole24Ore - Nt Lavoro - on 17/04/2024
On the matter of dismissal for objective just reason, the “non-existence of the fact” – hypothesis including the impossibility of relocating the employee elsewhere – implies the reinstatement of the employee, without the assessment of the existence of the conditions for the legitimacy of dismissal being relevant.
Court of Cassation no. 9937 of 12 April 2024.
In the present case a dismissal of an employee for physical unfitness to the job has been considered unlawful because the employer had not proven the impossibility of the repêchage.
The Court of Appeal, as well as the Tribunal ruled against the employer. According to the Court of Appeal, indeed, the employer must prove the impossibility of the repêchage while the employee is not obliged to specify all the alternative position that may fit for him/her.
To meet this burden of proof the employer must prove that «all positions were permanently occupied at the time of the dismissal and that, after the dismissal and for a reasonable period of time, no hires were made».
In the present case the employer failed to provide such proof and therefore the dismissal was found to be unlawful, with consequent reinstatement of the employee pursuant to Art. 18, paragraph 4 L. 300/70.
The Company appealed in Cassation. The Court of Cassation ruled against the employer recalling that in case of dismissal due to the employee’s supervening physical unfitness, the employer must prove the existence of the conditions for dismissal, demonstrating the employee’s condition, the impossibility of assigning him/her to duties compatible with his/her state of health, possibly even inferior ones, as well as the impossibility of making reasonable organization accommodations (Court of Cassation no. 6497/2021).
Moreover, with reference to the penalty consequences, the Court recalls that the violation of the employer’s obligation to assign the employee to possible alternative duties, compatible with his/her health condition, represents the hypothesis of lack of justification for dismissal, punished with the reinstatement of the employee (Court of Cassation no. 26675/2018).
On this latest point, the Court of Cassation recall that with the judgment no 125/2022 the Constitutional Court stated the constitutional unlawfulness of the art. 18, paragraph 7, L. 300/70 limitedly to the word «manifest». It results that on the matter of dismissal for objective just reason, the “non-existence of the fact” – hypothesis including the impossibility of relocating the employee elsewhere – implies the reinstatement of the employee, without the assessment of the existence of the conditions for the legitimacy of the dismissal being relevant.