The ban on dismissal in light of the recent clarifications by the National Labor Inspectorate

Prepared by Giulia Spalazzi and Valentina Panettella

The National Labour Inspectorate specified in its note no. 298 of 24 June 2020 that the suspension of dismissal, provided for – until 17 August 2020 – by Articles 46 and 103 of Legislative Decree no. 18/2020 and Article 80 of Legislative Decree no. 34/2020, also includes dismissals due to supervening unfitness for the job.

The meaning of the expression “unfitness for the job” is the partial or total loss, by the employee, of the suitability to perform the tasks for which he was hired, which may be caused by the arising or worsening of a physical or psychological pathology.

In this regard, it is worth pointing out that the case-law opinion according to which the definitive partial loss of working capacity legitimized the automatic termination of the relationship, pursuant to art. 1464 of the Italian Civil Code, is now superseded. Indeed, the ruling no. 7755 of 7 August 1998 of the Joint Sections of the Supreme Court of Cassation clarified that the adoption of the rule of automatic termination of the contract must be excluded in the field of labour law by virtue of the special nature of the interests involved.

The impossibility to perform the work cannot, therefore, constitute a form of non-fulfilment by the employee, nor is it suitable to automatically terminate the employment relationship; it is limited, in actual fact, to a possible hypothesis of justified objective reason for dismissal, suitable to activate the so-called repêchage obligation to be fulfilled by the employer.  However, the obligation to find a possible different utilization of the employees within the company cannot be translated into the obligation for the employer to carry out a modification of the company organizational structures in force because, on one hand, the Italian Constitution protects the right to work and health (as per Articles 4 and 32) but, on the other hand, it recognizes also the freedom to conduct business (as per Article 41), preserving the discretion of the economic-entrepreneurial choices of the employer.

Therefore, dismissal due to the employees’ permanent unfitness for the job will be lawful if the adoption of the “appropriate organizational adjustments” is unreasonable, leading, for instance, to disproportionate financial burdens, production inefficiencies or an increase of health and safety risks for other workers (Supreme Court, decisions no. 27243/2018 and no. 10018/2016).

Moreover, in carrying out its repêchage obligation, the employer who, in compliance with the principle of fairness and good faith, identifies lower tasks compatible with the employee’s new status, will also be able to proceed with demotion even without entering into a demotion agreement, as this being the only alternative to the employer’s withdrawal (Supreme Court decisions no. 10018/2016, 18020/2017 and 27243/2018).

Let’s Talk

For a deeper discussion, please contact:

Francesca Tironi

PwC TLS Avvocati e Commercialisti

Associate Partner

Giulia Spalazzi

PwC TLS Avvocati e Commercialisti

Senior Manager