Thanks to Marta Sponza for collaborating on this article
The Italian Supreme Court ruled that it is legal to dismiss the same employee for different reasons.[1]
Background
The litigation concerned two judgments related to two cases of dismissal for cause involving the same employee. The first dismissal concerned inappropriate consultancy of companies under investigation for fraudulent bankruptcy, while the second was based on two instances of unauthorized conduct involving the family to which the abovementioned companies belonged. The two judgments ended with two separate rulings that declared the second dismissal ineffective. The first-instance decision concerning the ineffectiveness of the second dismissal was upheld by a court of appeals.
Court of Cassation decision
The Court of Cassation found case-law consistently stated that when an employer has already indicated that an employee is subject to dismissal for a certain cause, it may lawfully indicate a second dismissal for a different reason. The second dismissal is to be considered effective only if the first is deemed ineffective or invalid.
This means that it is legal to indicate a second dismissal, even if it is intended to have no effect unless the first dismissal is overturned.
The connection between the two dismissals is irrelevant if the first dismissal comes to fruition.
In brief:
- if the first dismissal is annulled, the second dismissal is allowed to take effect;
- if a final ruling rejects an appeal against the dismissal, the second dismissal is considered ineffective.
Legally, the second dismissal cannot be declared ineffective based on a provisional finding resulting from the appealable ruling on the first dismissal. As a consequence, if the judgement on the first dismissal is not yet res iudicata, the court must rule on the lawfulness or lack thereof of the second dismissal and not on the connection between the two, because the connection is established only after the judgment on the first dismissal is final.
[1] With decision No. 2274 of January 23, 2024.
