With sentence 1940/21, the Court of Milan – Labor Section applied the principle expressed by the Court of Cassation in order no. 2293 of 01/30/2018 on the subject of the manager’s right to compensation for damages due to the employer company’s failure to set objectives.

In the present case, the request of a manager was accepted, for the assessment and declaration of the company’s breach of contract due to failure to set objectives aimed at the payment of the variable remuneration and compensation for the consequent damage due to loss of opportunity.

The basis of the assessment was the validity and immediate preceptivity of a contractual clause, which has as its object the disbursement of an additional share of remuneration against the achievement of the objectives decided by the company and communicated at a later time to the worker. It was clear, therefore, that it was not a question of a negotiation between the parties, but of a definitive obligation imposed only on the employer.

Furthermore, even if one wanted to hypothesize an uncertainty of the content of the aforementioned clause, as did the defense of the company, it would have been completely contrary to good faith to make the worker bear the consequences of knowingly applying a clause vague content on the part of the predisposing employer.

Thus, once the company’s omission of setting objectives was recognized, from which, moreover, no objection in this regard arose, apart from the denial of having ever undertaken to do so, the objections also proved groundless of the defendant both on the absence of an incentive system and on the extraordinary nature of the emoluments paid to other managers in the same period.

As regards the compensation for loss of chance – identified as the concrete possibility of obtaining a good in life, albeit through recourse to presumptions – first of all, the causal link between the conduct and the event was ascertained according to the civil law criterion of the “more probable than not”. In fact, if the harmful act (the failure to set the company’s objectives) had not occurred, the appellant would have had concrete possibilities of obtaining the good (the liquidation of the variable remuneration).

To this was added the demonstration of the consistency of this chance with reference to the probabilistic judgment regarding the achievement of the objectives where set, since from the communications of the previous employer with whom the applicant held the same position, it was evident that he had always achieved the goals set by the company. Consequently, the judge deduced that, if objectives had been set, the manager with a consistent probability would have largely achieved them.

Cristina Rota & Marta Insolia