By Sentence number 14456, published on 9 June, 2017, the Supreme Court established that retaliatory dismissal can only be annulled if the worker can prove that the redundancy was based on retaliation: in other words that the worker was fired only as a consequence of his or her undesirable behaviour as perceived by the employer, and, therefore, the redundancy would have to be a consequence of an exclusive and determining reason which is illicit. Therefore, it is also necessary to prove that the desire of the company to fire the worker was not strictly based on the company's reaction to the worker's behaviour, whereby such behaviour can actually be legitimate, such as, for example, asking to be paid money which is justified, or if the worker refuses demotion.
Also according to the Supreme Court, retaliatory dismissal must be distinguished from discriminatory redundancy, which is based on objective infringement of specific norms, and which is motivated by reasons connected with political or religious belief, race, age, handicap, language or sex, as well as by personal convictions or by a worker's involvement with a trade union.
Discriminatory redundancy must be proved by the worker, whereby the worker can also act on presumptions; but it is not necessary to show the existence of the subjective element, in other words the existence of the company's desire to discriminate against the worker.
