Dismissal null and void because retaliatory, the unlawful reason must be the only effective reason for withdrawal

Case Ref: Cassazione civile sez. lav., 02/12/2019, n. 31395

The Court of Cassation confirmed the law principle providing that when the dismissal is claimed to be null because retaliatory, the unlawful reason grounding the dismissal under art. 1345 of the Italian civil Code shall be decisive, meaning it shall represents the effective – and exclusive – reason of dismissal, and the lawful reason formally mentioned is not proved in Court. Therefore, before evaluating the employee’s claims to apply art. 18, Law no. 300/1970 as edited by Law no. 92/2012, the Court shall previously ascertain that the reason formally grounding the dismissal does not actually exist.
In the case decided by the Court ruling herein analyzed, the dismissal was considered null because retaliatory, since the only reason of the dismissal was represented by the press declarations made by the employee, considered by the employer as very serious and causing damages to the Company, while the Court found this inexistent.
According to the Judges, the criticisms raised by the employee can either be a lawful exercise of a right, or a misconduct when it exceeds the limits protecting the dignity of a person, meaning the truth of the facts mentioned (so called “substantial continence”) and the way in which the facts were disclosed, respecting conventionally shared standards of correctness, limits and civil respect of the dignity (so called “formal continence”), taking into account that the way in which a fact is disclosed may have a different impact if published on newspapers and television, within a literally or cinematographic work, a satirical piece of work, or the criticism is exercised in the context of a contractual relationship of collaboration and trust between employer and employees.
The Judges ascertained the pertinence and continence requirements, and correctly – according to the Court of Cassation – construed such criteria under the law perspective.
Therefore, the reasons formally grounding the dismissal were considered as unlawful and inexistent, and the dismissal was considered null.