Dismissal of an employee who refuses to move from a part-time to a full-timeregime

An employee who refuses to amend his employment relationship by accepting a full-time schedule may be dismissed because the part-time work cannot be used, but not because of the refusal standing alone.

In its Order No. 29337 of 23^rd October 2023, the Supreme Court stated that, in the event of a refusal to transform the relationship from part-time to full-time, the employee may be legitimately dismissed if the termination is not due to the unwillingness but because of the impossibility of using the part-time work performance.

The employee had challenged the dismissal for objective reasons served to him by the employer for suppressing the task assigned to him, complaining that the real motive behind the dismissal was the previous refusal to convert his employment relationship from a part-time to a full-time schedule.

The Court of Appeal ruled in favour of the employee's action, finding that the reasons formally put forward by the employer were not grounded in fact and, consequently, declared the dismissal unlawful because, according to the Court, it was an illicit retaliation for the refusal to convert the employment relationship to full-time work.

The Supreme Court, overruling the above decision, upheld the company's appeal and declared the dismissal lawful.

More specifically, the Court noted, preliminarily, that Article 8, paragraph 1, of Legislative Decree No. 81/2015, on the one hand, excludes that the refusal to change the employment working schedule may constitute, per se, justified grounds for dismissal; on the other hand, however, the provision does not preclude the right to terminate the employment for objective reasons in the event of a refusal of part-time work.

According to the Supreme Court, the general principle established by the mentioned rule allows for an exception where the employer proves economic and organisational needs that do not allow them to keep using part-time work. Namely, a proposal must be made to the employee to change the employment relationship to a full-time schedule, the latter's refusal and the existence of a causal link between the need to increase working hours and the dismissal.

For a dismissal to be lawful, it is, therefore, necessary to prove the reasons given for the change of working hours, but also, as a constitutive element of the objective justification, the impossibility of using the employee's work with reduced working hours.