ITA 
Court of Cassation, Order no. 4404/2022
It is lawful to dismiss the employee who does not show up at the new workplace after being notified the transfer, as stated by the Court of Cassation with Order no. 4404/2022.
In this case, the Court of Appeal first of all recognized the lawfulness of the transfer ordered by the employer company, which led to the unlawful refusal of the employee to go to the new site and the just cause for dismissal already stated by the Tribunal.
Secondly, the territorial court examined the case in the light of Article 1460 of the Civil Code, considering in any event that the employee's refusal to transfer was contrary to the canons of fairness and good faith, thereby confirming the lawfulness of the employer's dismissal.
With the Order herein commented, the Court of Cassation upheld the decision of the Court of Appeal and rejected the claim filed by the employee
According to the Supreme Court"even in the event of a transfer adopted in violation of Article 2103 of the Civil Code, the employer's failure to perform does not automatically justify the employee's refusal to perform the work because, since this is a contract with corresponding obligations, the provisions of Article 1460, paragraph 2, of the Civil Code apply, Article 1460(2) of the Civil Code, according to which the performing party may refuse to perform the service at its own expense only if such a refusal, having regard to the concrete circumstances, is not contrary to good faith (see Court of Cassation n. 11408 of 2018)".)”.
And so “the employee's failure to comply with the unlawful transfer order must, therefore, be assessed, from a sanctioning point of view, in the light of the provisions of article 1460, paragraph 2, of the Italian Civil Code, according to which, in contract with corresponding obligations, the non-performing party may not refuse to perform if, having regard to the circumstances, the refusal is contrary to good faith".”.
For the Supreme Court, the related assessment"must be carried out on the basis of the concrete circumstances of the specific case, which may take into account, by way of example and not exhaustively, the extent of the breach by the employer in relation to the overall structure of interests regulated by the contract, the concrete impact of this breach on the basic needs of life and family of the employee, the precise, formal explanation of the technical, organizational and production reasons underlying the transfer order, the impact of the worker's behavior on the employer's organization and, more generally, the achievement of the company's interests, all of which must be considered in order to balance the conflicting interests at stake, also in the light of the constitutional parameters set out in Articles 35, 36 and 41 of the Italian Constitution".”