The Court of Cassation, with Order No. 1364 of 20 January 2025, clarified important aspects relating to the obligation of repêchage in the event of dismissal for justified objective reasons. In particular, the Court of Cassation – excluding the reinstatement of the employee – ruled that the obligation of repêchage does not require the employer to relocate the employee to lower tasks in the workforce if there are no tasks compatible with the dismissed employee’s professional profile.
The case originates from an appeal brought by an employee, who held the position of export salesman, who was dismissed following the cancellation of his position. Challenging the dismissal, the worker claimed that the company had not adequately explored all the possibilities of outplacement within the company, thus requesting reinstatement.
In the course of the proceedings, the Court of First Instance had held that the dismissal was unlawful from a procedural point of view, and had also recognised that the repêchage obligation had not been complied with. However, the Supreme Court, reforming the first instance ruling, established that the search for alternative duties should not extend to positions that are not strictly compatible with the employee’s professionalism.
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Dismissal for a justifiable objective reason is unlawful if the employer does not prove that it has offered the worker lower-level positions, even on a fixed term basis.
Before proceeding with a dismissal for a justified objective reason, the employer must demonstrate that he/she has explored all possible solutions to relocate the worker within the company.
This principle was affirmed by the Italian Court of Cassation, with order no. 18904 of 10 July 2024, thereby reinforcing employers’ repêchage obligations.
Consequently, the Court concluded that dismissal is unlawful where alternative employment positions exist at the time of termination, even in lower or fixed-term jobs, and the employer has not offered these jobs to the employee.
The Court reiterated that the burden of proving that relocation is impossible falls entirely on the employer.
Companies must therefore manage human resources carefully, documenting any attempt at relocation, to avoid a dismissal being held to be unlawful.
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