The Court of Cassation, with ruling No. 19731 dated 25 July 2018 has recently expressed its opinion on the repêchage obligation. In the case in question, an employee had filed a law suite against the dismissal ordered by the company due to closing down of the department where he worked, stating that the dismissal was unlawful for breach of the repêchage obligation. This since in his opinion (i) the employer company after the dismissal had continued hiring on a regular basis and with repeated staff leasing contracts and (ii) the staff leasing contracts reported reasons that did not match the true tasks then carried out by the leased staff, tasks that the employee had made himself available to carry out. In fact, confirming what the Judges having jurisdiction had ruled, the Court of Cassation rejected the appeal of the employee and pointed out that the employer, subjected to a long lasting period of difficulties in getting results and financial difficulties, had the right to reduce its staff. And according to the Court of Cassation, it can do so by redistributing to the residual personnel the tasks previously assigned to the dismissed employee or making use, for strictly limited time periods, to external resources hired with fixed term contracts or staff leasing contracts. In addition, according to the Court of Cassation, the use of overtime work by the employer after the employee’s dismissal, also pointed out by the employee in support of his own claim, is explained according to said principle. This since the greater amount spent for the overtime remunerations of employees asked to work overtime are without a doubt lower than the costs associated to maintain a person hired under an open term contract.
