In times of crisis need to investigate further the just cause for dismissal related to the situation of economic crisis. The causes may be the most 'diverse but the most' is a common corporate crisis.
in employment indefinitely dismissal of the employee can only be for just cause under Article. 2119 cod. Civ. or justification. The discipline of dismissal for just cause is contained in Law No. 604 of July 15, 1966 that Article. 3 provides that "The justification for dismissal with notice is given by a substantial breach of contractual obligations of the employee or for reasons relating to production, work organization and to the smooth functioning of it."
There are therefore two cases of dismissal for just cause, "determined by a substantial breach of contractual obligations of the employee" saying subjective, disciplinary, the other connected to the grounds of the business situation but also to the personal situation of the worker, said objective. In times of crisis is more frequent recourse to dismissal for reasons related to production activities such as business: business crisis and closure of production, technological innovations, changing production processes, the elimination of departments or individual jobs, introduction new machines that bring less need for labor, contract of services and / or work to outside firms.
reasons inherent part of the productive activity also includes the assumption of organizational restructuring implemented in the most cost-effective management of the company is within the discretion of the employer unless the judge can review the selection criteria for the management of the company, since that choice is freedom of expression as protected by Article of economic initiative. 41 of the Constitution, even though the same judge has the control of the existence of the reason given by the entrepreneur and that this reason is not pretextual. The reasons, related to the production activity can be very diverse but, whatever its purpose (ie including those intended for the increase in profits and especially during these periods to reduce costs), they should be such as to render it unusable , the employment status considerata.
Dunque, come vedremo meglio in seguito, il percorso logico che porta al licenziamento del lavoratore non è contrazione di ricavi = licenziamento ma piuttosto contrazione di ricavi = necessità di contenimento dei costi = riorganizzazione aziendale = esubero di personale = impossibilità di adibire il lavoratore ad altre mansioni = licenziamento. Infatti, è illegittimo il licenziamento per giustificato motivo obiettivo, motivato solo con una più economica gestione e contenimento dei costi, nella specie, neppure provati (Trib. Ravenna 21/7/2006, ord., Pres. G.G. Lacentra, Est. M. Parisi, in Lav. nella giur. 2006, con commento di Michele Miscione, 996), cosi come quello motivato con una generica need to reduce the cost to replace the dismissed employee, the high costs for qualifying, another worker with less costly, if not related to any declared corporate restructuring (Court of Ravenna 12/6/2006, ord., East R. Cowgirl in proc. the jury. 2006, with commentary by Michael Miscione, 993). The Court confirmed the legality of the decisions on: the dismissal can not be determined by the mere purpose of saving, assuming instead the justified objective reason a corporate restructuring involving the elimination of certain jobs and the demonstration by the employer work that the dismissed employee can not be used in the same or other sectors of production (see Cass. No 3353/94 and Cass. No 4088/83) (Cass. 03/17/2001, No. 3899, pres. Trezza, ext. The Year in Labor and prev. today. 2001, p.. 1415).
Assuming that the indispensable element for the validity of the dismissal is the corporate reorganization, each is a legitimate reason (in an economic sense) that has led this process and not just the business reasons unrelated to the determinations, that is, market needs, but also organizational changes designed exclusively to an increase in profits. (Trib 21/09/2004 Sulmona, East Paglierini, in Lav. The jury. 2005, 89). However, such reasons must be related to the work objective and not arbitrary act of the employer. In the event of dismissal due to certain requirements relating to a corporate reorganization aimed at a more cost-effective management, even the impossibility of transforming the relationship to be full-time part-time in the abstract can configure the target pattern of withdrawal. (Cass. 6/7/2005 No 14215, Pres Rel Ciciretti Miani Canevari, in Lav. And prev. Today, 2005, 1454).
motivation to justify the dismissal is not enough to make it legitimate because it is undisputed that the same is the last resort so that it is the doctrine that the Court require the withdrawing employer to prove the impossibility of a return of the re-employed in other tasks, even lower in the corporate sector in a broad sense. In fact, in the case of dismissal notice by a company belonging to a group that is a single compound, the determination as to the reasons for the dismissal of the possibility of the repechage and cd to the dimensional requirements must be made with reference to the complex Company (Court of Milan 23/10/2006, East Martello, D & L 2007, 223). It is not the legality of the dismissal have been carried out no new posts in the same qualification of workers made redundant. In this regard, the employer must to prove the contrary and that evidence must relate to all branches of the business, it is sufficient to limit the business to which the dismissed workers were employed only in the case of preliminary refusal to relocate the same (n Cass. 03/06/1994 . 5401, pres. Buccarelli, ext. Putaturo, D & L in 1995, 190, note MUGGIA, Compensation for unfair dismissal: old and new rules).
The withdrawing employer is not obliged to give reasons to the employee at the time of notification of dismissal. However, the employer is obliged to provide it, within 7 days of the request of the employee, if he / she so requests within 15 from date of dismissal notice. What we must emphasize is that these reasons are immutable. As for the test, the law states that the burden is on the part of the employer (pursuant to Art. 5 of Law No 604/66). The employer must also demonstrate that it can not reasonably (without entailing significant organizational changes involving expansion of organic or structural innovations: Cass. 07/01/2005 n. 239, pres. Senese, ext. D'Angelo, 30 / 8 / 00 No 11427, pres. Ianniruberto, ext. Vidiri) use the employee involved in other work of equal value, or failing. even in tasks deteriorate, with the limit of respect dignity of workers (see, among many, Cass. 8/19/2004 No 16305, pres. Brick, ext. Ballets).
In case of dispute in court, it is always the employer to prove: the actual existence of technical or organizational reasons, the link between business needs and the dismissal notice, the inability to assign the worker to work in equivalent In the corporate or company, the job is effectively suppressed and that there has been a mere redistribution of duties among the remaining workers, have not taken in the following months (6-8 months) employees with similar qualifications either term of did not opt \u200b\u200bfor the workers to be dismissed in a discriminatory manner, for example, you can establish objective selection criteria.
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