In the case of dismissal for objective reasons, the repêchage obligation may be limited by the fact that the dismissed person does not have the professional skills to perform the other job, even if it is of a lower level. However, this must be demonstrated by facts that are objectively established and proven by the employer.
By order no. 31561 of 13 November 2023, the Italian Court of Cassation stated, in line with the principles already established by it on the subject, that in the event of an appeal against dismissal for the abolition of the job position, and where in the period immediately following the dismissal the employer has hired new employees, albeit for the performance of different tasks, the judge is required to assess whether or not the dismissed worker was able to perform the aforementioned tasks, even if of a lower contractual level, for the purpose of possible reassignment to them with a view to preserving employment.
This assessment must be carried out not in the abstract but in practice, taking into account the company’s specific assertions on this point as well as the levels of classification governed by the applicable collective bargaining agreement.
Repêchage obligations: brief notes on the case law
As is well known, repêchage gives rise to the employer’s obligation to assess, before proceeding with a dismissal for justified objective reasons, whether it is possible (within the limits that we will examine below) to employ the worker in other tasks.
This obligation has arisen through case law and seeks to balance the employer’s interest in achieving an efficient organisation with that of the worker in keeping his or her job, to ensure that dismissal constitutes the last resort, also considering the importance attributed to work by our Constitution (Italian Civil Court of Cassation, Employment Division, 3 December 2019, no. 31520; Italian Civil Court of Cassation, Employment Division, 13 June 2012, no. 9656).
According to settled case law, the repêchage obligation does not extend to workers classified as executives, as it is incompatible with the executive position which is characterised by voluntary withdrawal of services (see among others, Italian Civil Court of Cassation, Employment Division, 6 December 2022, no. 36955 ; Italian Civil Court of Cassation, Employment Division, 1 February 2013, no. 3175).
Under the previous text of Article 2103 of the Italian Civil Code (which allowed horizontal ius variandi [right of employer to make changes to the contract] for “tasks equivalent to the last ones actually performed”), the extension of the repêchage obligation was initially limited to equivalent tasks only. Subsequently, in the light of some exceptions to the prohibition on demotion provided for in special cases by regulatory provisions (including Article 42 of Italian Legislative Decree of 9 April 2008, no. 81 in the case of the worker judged to be unfit for the specific task), a new line of case-law had developed. Under this new line of case law, the employer, in the absence of equivalent tasks and before proceeding with the dismissal, was required to propose to the worker, to obtain his or her potential consent, his or her assignment to lower level tasks, provided that they fell within the latter’s skill set, since it is not possible to impose the costs associated with vocational training on the employer (see among others, Italian Civil Court of Cassation, Employment Division, 3 December 2019, no. 31520, cit., in relation to a case to which the previous text of Article 2103 of the Italian Civil Code applied; Italian Civil Court of Cassation, Employment Division, 23 October 2013, no. 24037).
In any event, the case law has always been, as it still is, unequivocal in holding that the repêchage obligation refers only to the already existing organisational structure and does not require the employer to create an ad hoc alternative job position.
The new text of Article 2103 of the Italian Civil Code (as amended by Italian Legislative Decree of 15 June 2015, no. 81) allows horizontal ius variandi in tasks attributable to the same level and legal category as the last ones actually performed (paragraph 1). It also allows the assignment of tasks attributable to the lower classification level, provided that they fall within the same legal category, in the event of a change in the company’s organisational structure that affects the worker’s position (paragraph 2).
It is clear that, as evidenced by the case law, “the increased employer obligation due to the impossibility of applying repêchage in relation to inferior tasks brought about by the entry into force of Article 2103 of the Italian Civil Code, cannot, however, be considered absolute”: the obligation should be limited to “unskilled tasks, i.e. those that do not require appropriate training”, as “the obligation to assign to the worker tasks that require appropriate training would in fact mean imposing an additional financial cost on the employer” (Court of Rome, 24 July 2017).
Therefore, not all the lower-level positions in the company organisation chart are relevant, but only those compatible with the worker’s professional skills or those that have actually already been carried out, at the same time or previously (Italian Court of Cassation no. 31521/2019).
In short, the majority case law has avoided attributing to the third paragraph of Article 2103 of the Italian Civil Code, according to which the change of duties is accompanied, where necessary, by the fulfilment of the training obligation, an extensive interpretation of the repêchage obligation to the point of requiring the employer to provide the necessary training so that the worker can be usefully employed in other tasks to avoid dismissal.
On this point, it is worth mentioning a recent decision of the Court of Lecco which partially departed from this approach: the Court held that although there is no general obligation to professionally train the worker, in the event that his or her professional skills have become obsolete due to a company reorganisation, the employer, in accordance with the principle of fairness and good faith, must also assess whether it is impossible, or at least unprofitable, to provide professional retraining before proceeding with the dismissal (Lecco Court, 31 October 2022).
In the context of this legislative and case law development, the burden of proof remains on the employer. The employer must therefore attach all the documentation and factual evidence necessary to corroborate its position and, therefore, to demonstrate that there were no other job positions or that, in the context of an offer of a different position, it was the worker himself or herself who declined the new tasks from the same or different initial legal category.
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