Dismissal for poor performance

The Court of Cassation rules on dismissal for breach of contract and negligence.

Case ref: Court of Cassation, Judgement no. 13625 of 2 July 2020

With Judgement no. 13625 of 2 July 2020, the Court of Cassation confirmed the legitimacy of the dismissal, intimated as a result of multiple failures and negligence in performing the job. The case originates from a dismissal served on an employee pursuant to Article 2119 of the Italian Civil Code, for multiple breaches and negligence in the preparation of the Company’s financial plan, which was declared unlawful by the Tribunal in a ruling challenged by the Company.
The Court of Appeal, after having ascertained that the drafting of the financial plan represented one of the tasks assigned to the employee at the time of hiring, and that the employee had committed numerous irregularities and errors in the drafting the plan, declared the legitimacy of the dismissal as a partial reform to the decision in first instance. In particular, according to the Court of Appeal, the dismissal was indeed lawful, not on the basis of “just cause” though, but on the grounds of “justified subjective reason” as «the non-performance was not such as to break the bond of trust (which would warrant immediate dismissal for just cause), but was a failure to fulfil obligations and acts of negligence, showing a lack of diligence and professional commitment».

The Court of Cassation upheld the judgment in the second instance.
According to the Judges, the Court of Appeal, had «ruled out the existence of a just cause for dismissal by not detecting any breach of fiduciary duty, but considered the existence of a justified subjective reason, having found a lack of diligence and an inability to perform the job reliably, which was deemed as already proven in first instance, given the errors and serious imperfections in the documents drawn up by the claimant».
With particular reference to the request for a re-examination of the facts, the Supreme Court Judges reiterated that only the judge of merit is responsible for the evaluation of the facts and to judge them in the context of the law.
With specific reference to the “just cause” for dismissal, the Judges remind us that «in the context of general clauses such as just cause, therefore, first of all it is indispensable, as in any other case of alleged misapplication of the law, that we start from the reconstruction of the facts of the case as carried out by the judges of merit (among the most recent ones: Court of Cassation no. 13534 of 2019 cit. and Cass. n. 6035 del 2018), otherwise, we would be revisiting the factual assessment already made by the lower court, whose jurisdiction it is. Given that the elements required to dismiss for just cause, as established by consolidate caselaw, are multiple, in assessing the legitimacy we need to look at the relevance of the individual parameters and the specific weight given to each of them by the judge on the merits, in order to verify the overall judgment resulting from their combination and to test the consistency and reasonableness of the assumption within the general clause».
The Supreme Court concludes that the Court of Appeal «excluding the existence of an irreparable breach of the fiduciary bond for the purposes of dismissal for just cause, has, however, found a significant inability and negligence in carrying out the relevant work, thus concluding that the dismissal is lawful and this assessment, free from logical defects, cannot be censored in the context of legitimacy».