Article written by Alberto De Luca and Giovanni Iannacchino
With its ruling no. 19465 of 2015 the Cassation Court returned to decide on the limits to the irreducibility of salary principle granted to the worker. Specifically, the Court upheld the correctness of the lower court judgement which had reiterated, in keeping with a consolidated orientation, that the irreducibility of salary principle is not absolute and does not apply to those payments given to workers aimed at compensating a specific procedure for performing their job, when that procedure changes.
The case regarded a worker who was unilaterally denied the compensation paid for night shift work (as a night security guard), when his duties were changed to those of a day security guard. The worker appealing to the court against the lower court ruling, based his request on two allegations: with the first, he had denounced the violation and false application of the irreducibility of salary principle considering it absolute and not susceptible to exceptions; with the second, he had objected to the insufficient and contradictory grounds regarding a decisive fact for the judgement, consisting of the lower court judge’s failure to consider that his salary should have been proportional to the job for which he had been hired (night shift guard) and not to that later assigned to him (day shift guard). The two motives were treated jointly and both considered unfounded.
The court upheld the principle expressed by the Appellate Court whereby, once the particular procedures for performing his job no longer existed – in this case night shift work – the employer’s refusal to pay the worker a specific compensation aimed at compensating the special nature of his duties and relative hardships was completely legitimate.
In keeping with a recent and consolidated case law orientation, the Supreme court argued that the irreducibility of salary principle, based on article 2103 of the Civil Code and article 36 of the Constitution, i.e. the ban on assigning lower duties and necessity for the amount of salary to be compatible with the quantity and quality of work performed, includes those payments directly connected with the special nature and more difficult manner of performing the job (most recently Labour Cassation 20418/2013 and Labour Cassation 20310/2008).
The Court remarked that under this profile, the irreducibility of salary principle does not possess an absolute nature. Specifically, according to the Cassation, the salary acquired by the worker considered irreducible is that which includes all of the salary items linked to the intrinsic professional qualities of the worker’s duties.
In reference to the second reason for the appeal, the Court revealed, inter alia, that in the job contract the duties indicated were those of a guard, without specifying if assigned to night or day shift. Based on the above, the Supreme court ruled that the employer’s conduct was irreproachable.
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