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Italian rulings: Right of criticism (dismissal) and Verbal dismissal (burden of proof)

Right of criticism - dismissal

The dismissal of a general manager for having outlined some accounting irregularities and the possible configuration of crimes to the Board of Directors is unlawful.

The Supreme Court has returned to rule on a debated issue: that of the limits of the right of criticism of an executive towards the property and the directors, and the consequent legitimacy of the dismissal ordered for deemed overcoming of these limits.

In essence, the dispute decided by the Supreme Court was the following. A recently hired general manager had reported, during the board of directors called for the approval of the previous year's financial statements, some accounting irregularities that could expose the company to the risk of committing a crime. The company had fired him for just cause as his criticisms were substantially unfounded. The Supreme Court, reforming the challenged decision of the Court of Appeal, granted the executive’s appeal of the executive, recalling that criminal complaints by employees of crimes committed by the company cannot give rise to dismissal, even if they are not provided with formal and substantial continence and untrue results, except in the case that they are the expression of a persecutory intent of the employee. This is because the interest that moves the employee is a constitutionally protected public interest of a higher rank than the honor possibly harmed. This being the rule, the more the employee must be held harmless, who, even before the criminal complaint, notify the risk to the company, as in the case in question (see Supreme Court’s decision dated May 31, 2022, No. 17689).

Verbal dismissal - burden of proof

The Supreme Court affirmed that the employee who challenges the dismissal, by complaining that the dismissal was executed without observing the written form, has the burden of proving, as constitutive fact of the claim, that the termination of the employment relationship is attributable to the employer's will, tough manifested with conclusive behavior, as the proof of the mere employment relationship termination is not sufficient (see Supreme Court’s decision dated May 18, 2022, No. 16013).

Avv. Guido Brocchieri

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