With Order No. 1584 of January 19, 2023, the Supreme Court returned to the subject of dismissal for poor performance, affirming that conduct that has already been sanctioned using conservative measures cannot constitute the basis for a disciplinary dismissal.
DISMISSAL FOR POOR PERFORMANCE
The concept of dismissal for poor performance has been addressed by case-law on several occasions. Case-law has confirmed that there are two main requirements to substantiate an employee’s poor performance:
- there must be a significant gap between the goals assigned and the results that the employee achieves;
- the employee must be responsible for the gap between the goals and actual results.
Specifically, if an employer wants to fire an employee for poor performance, the employer must demonstrate that, based on both the employer’s evidence and an overall evaluation of the employee’s performance, there has been a clear breach of the duty of diligent cooperation on the part of the employee and that breach is attributable to the employee.
Finally, although there is still a minority legal view that this scenario fits under the umbrella of dismissal for objective justifiable reason, dismissal for poor performance actually falls under disciplinary dismissal, specifically for subjective justifiable reason (and therefore with payment for the notice period).
BACKGROUND OF THE DECISION
The Court of Bologna in the first instance declared dismissal for poor performance “for obvious inadequacy attributable to the fault of the staff member in the performance of the duties of his or her position” unlawful and ordered the employee reinstated as provided by Article 18, para. 4, Law No. 300/1970 as amended.
Indeed, the court found that first using a conservative sanctioning measure—suspending the employee and docking pay for five days—and then a few days later based on the same allegation using a dismissal measure conflicted with the prohibition on ne bis in idem in disciplinary matters. In other words, the employer had already exercised its disciplinary power, so the disputed fact used as grounds for dismissal basically did not exist.
The Bologna Court of Appeals upheld the first instance ruling in its entirety, concluding that the dismissal in question was based exclusively on the disciplinary record and that the employer had not otherwise deduced “on an objective level, below-average performance and on a subjective level, assignment of fault to the agent due to inexperience, inability, and negligence.”
THE ORDER OF THE SUPREME COURT
The employer filed an appeal with the Supreme Court, which found it groundless.
The court confirmed that dismissal for poor performance is objectively characterized by performance below the established average and subjectively characterized by the employee’s fault. For this reason, as already stated by the Supreme Court on other occasions, an employee’s record of multiple disciplinary instances that have already been sanctioned cannot serve as proof of poor performance, as this would constitute duplicate punishment for conduct that has already been sanctioned.
In this case, the employer used only previous disciplinary charges as the basis for the dismissal. However, according to the court, although it is certainly possible to support the notion of poor performance with a range of conduct, those instances cannot already have been sanctioned by the employer.
With this decision, the Supreme Court upheld its earlier approach and reiterated the prohibition of ne bis in idem in cases of dismissal for poor performance.
Additionally, it should be noted that the court confirmed its intention to classify a dismissal for poor performance as a disciplinary dismissal, based on both an objective element—the employee’s below-average performance—and a subjective element—the employee’s fault.
Drafting a Performance Improvement Plan (PIP) can be a valid tool for measuring an employee’s performance objectively and can also reduce the risk of claims in cases of dismissal upon unsuccessful outcome of the PIP.