The letter of dismissal does not need to narrate all the elements of fact and law on which the measure is based
Court of Cassation, Employment Section, 6 August 2020, No 16795
Within the letter of dismissal, the employer is obliged to communicate in writing the reasons for the dismissal, but is not obliged to specifically set out all the factual and legal elements underlying the measure.
This is the principle of law reaffirmed by the Court of Cassation in its Ruling of 6 August 2020 no. 16795.
The case in question concerns an employee who challenged the dismissal as being in violation and misapplication of Article 2, Law no. 16795. 604/1966. The claim was thrown out in first instance and the ruling upheld by the Court of Appeal on the grounds that the dismissal “met the requirements for a dismissal for justified objective reasons, i.e. the technical-production reason, consisting in the transfer of gas distribution plants and the close causal link with the tasks performed by the employee, and the choice of employee was in line with the criteria of good faith and fairness as determined by the need to keep a more qualified person in the company”.
The decision of the Court of Appeal was also upheld by the Supreme Court, who said it is sufficient that “the employer indicates the essential features and circumstances of the termination, so that when appealing it cannot invoke a totally different set of circumstances (see, among others, Court of Cassation no. 3752 of 1985), and it is certainly not required to provide proof of the reasons given”.
The Judges of the Supreme Court also pointed out that where the reason for dismissal is the abolition of the position, it is not necessary to indicate that the worker is redundant, as this is implied, and is a factor to be proved directly in court (see Court of Cassation No 3752 of 1985).
This principle, notes the Supreme Court in the judgment in question, was confirmed also following the obligation to specify the reasons for the written dismissal introduced by Article 1, paragraph 37 of Law no. 92 of 2012 (which amended Article 2, paragraph 2, of Law no. 92 of 2012). 604 of 1966), given that “the rationale of the legislative provision on the burden of form was and still is that the reason for dismissal is specific and essential and allows the worker to understand the actual reasons for withdrawal (which, with regard to dismissal for objective reasons, are substantiated in the reason inherent in the production activity, organization of work and its regular operation, as required by Article 3 of Law no. 604 of 1966)”.
The Supreme Court goes on to say that ‘it follows from the principles of immutability of the statement of reasons and from the Court’s consolidated approach to the definition of the obligation of repêchage as a constituent element of dismissal (see Court of Cassation No 10435 of 2018) that the employer is obliged to prove in court that it is impossible for the worker to perform other duties’.
The judgement reminds us that the new legislation has limited itself to removing “the anomaly of the possibility of serving an unjustified written dismissal (and justifiable only on request) by introducing the contextual nature of the reasons, but has not changed the function of the motivation, which remains that of enabling the worker to understand, in essential terms, the reasons for withdrawal; it follows that in the letter of dismissal the employer has the burden of specifying the reasons for the dismissal, but is not required, even after the aforementioned legislative amendment, to set out in an analytical manner all the factual and legal elements underlying the measure (Cass. No. 6678 of 2019)”.