By judgment No 12132 of 8 May 2023, the Italian Court of Cassation ruled on the subject of dismissal for justified objective reason. The Court specified that in the assessments of the possibility of relocating the employee before proceeding with the dismissal (so-called repêchage obligation), the employer is required to take into consideration not only the positions already vacant at the date of dismissal, but also those that will be ‘available in a period of time very close to the date of the announcement of the dismissal’.
The facts and the judgment on the merits
On 3 May 2011, an employee with the duties of Sales Manager, was dismissed because his position was redundant. The employee brought an application challenging the dismissal before the Court of Busto Arsizio. The employee sought reinstatement and compensation and also requested a determination that his employment relationship was also attributable to another group company.
The application was dismissed at first instance and on appeal.
A first appeal was therefore brought before the Italian Court of Cassation against the judgment of the Court of Appeal of Milan. This appeal concluded with the acceptance of this further appeal and a referral to the same Court of Second Instance, sitting with different judges, to rule on the objections raised on the subject of the repêchage obligation.
In particular, according to the Italian Supreme Court of Cassation, the Court of Appeal had not conducted the necessary investigations regarding the employer’s compliance with its repêchage obligation. The Court of Cassation recalled that the employer, in this regard, had the burden of proving: (i) the lack of available positions where it could feasibly relocate the employee and (ii) the absence of subsequent recruitment. The Italian Court of Cassation also pointed out that the finding of co-employment could be relevant in the context of an overall assessment of compliance with the repêchage obligation.
The proceedings were therefore reinstated before the Court of Appeal of Milan, which established the actual breach of the repêchage obligation and therefore the unlawfulness of the challenged dismissal.
Specifically, according to the Court of Appeal, at the time of dismissal, two employees with Area Manager duties had resigned with notice expiring on 31 May 2011, a period of time shortly after the date of dismissal. Consequently, the employer should have taken that fact into account in its assessments of the employee’s relocation.
According to the Court of Appeal the following points were irrelevant: (i) the two resigning employees were hired a month later by another Group company that previously obtained their services through a service contract and then decided, in June 2011, to internalise the sales activity, no longer using the services provided by the employer company; and that, consequently, (ii) the dismissal was due to a complex company reorganisation to reduce staff numbers, including the two who had resigned who, in fact had never been replaced, to cope with loss of turnover.
The judgment of the Italian Supreme Court
The employee appealed to the Italian Court of Cassation against the decision taken by the Court of Appeal of Venice. The employer company appealed to the Italian Court of Cassation against the decision taken by the Court of Appeal of Milan.
The Italian Court of Cassation declared the appeal inadmissible and upheld in full the judgment issued by the Court of Appeal of Milan when the case was referred to it.
Specifically, with particular reference to the repêchage obligation, the Italian Court of Cassation highlighted how the Court of Appeal of Milan had followed the indications provided at the time of referral and had ascertained that on the date of the employee’s dismissal, 3 May 2011, two employees of the employer company were completing the dismissal notice period that was to end on 31 May 2011. This proved that at the time of dismissal, the employer was aware that two positions that could be filled by the employee would soon become available in the company.
The Court of Appeal then found that the employer company had not yet been informed at the time of the dismissal of the related company’s decision not to continue to use the service contract and to internalise sales, as this information was not provided until 20 June 2011.
The loss of the service contract could therefore in no way be linked to the dismissal.
The Italian Court of Cassation therefore agreed with the finding made by the Court of Appeal of Milan and underlined that ‘the employer, in assessing the possibility of relocating the employee before proceeding with his/her dismissal, must also take into consideration those employee positions that, although still filled, will become available in a period of time very close to the date when notice of the dismissal is given’.
Since the appeal to the Italian Court of Cassation was ultimately seeking only a different interpretation of the facts from that provided by the Court of Appeal, the Court of Cassation therefore concluded that the appeal was inadmissible, and that the applicant should be ordered to pay the costs.
Other related insights:
The Court of Cassation, in its ruling of 16 March 2021, no. 7360, established that where the employee dismissed for justified objective reasons had made themselves available for transfer only in certain areas, the employer must prove it is impossible to relocate them in those offices to avoid incurring in the repêchage obligation violation.
An employee appealed against her dismissal for justified objective reasons following the closure of the local unit where she was employed as a store manager.
The relevant Court of Appeal, changed the first instance ruling, rejected the appeal presented by the employee, claiming the lack of violation of the repêchage obligation because she was only willing to be transferred only to one of the offices of the employer, located in Campania or lower Lazio.
The employee appealed against the court’s decision.
The Court of Cassation confirmed the ruling of the District Court and, taking up some of its established guidelines, stated preliminarily that: “in the matter of dismissal for a justified objective reason, it is up to the employer to allege and prove the impossibility of repêchage of the dismissed employee, as a requirement of the legitimacy of the employer’s termination. The employee does not have to provide evidence of the assignable positions, as a gap between those burdens cannot be classified from a procedural point of view.” (see ruling no. 5592/2016; ruling no. 12101/2016 and ruling no. 160/2017).
For the Court of Cassation, this burden is discharged by the employer when it proves that there is no possibility of relocating the employee dismissed in an office included within the area where they are willing to move. Although the employee does not have to provide any evidence, defining the spatial scope of interest in the judicial application, it allows the employer not to make claims about the possible relocation in offices located in different areas
On these grounds, the Supreme Court rejected the employee’s appeal, deeming that the respondent company had met its burden of proving that it did not have any vacancies in Campania and lower Lazio.
Other related insights:
The Court of Cassation, with judgement No. 1499 dated 21 January 2019, confirmed the principle of law according to which, concerning dismissal due to justified objective grounds, it must be deemed proven that an attempt has been made to repêchage by the employer who, as an alternative to dismissal, offered to the redundant employees the chance to change their work hours.
The facts
A female worker, employed by a company operating in the insurance and tourism services sector and employed at the reception counter and ticketing area, was dismissed on justified objective grounds because of the closing of the area where she was employed. As an alternative to the dismissal, the Company had proposed transforming the employment relationship from full time to part time, which, however, the employee refused.
The worker then filed a lawsuit to the competent local Employment Court to claim that her dismissal had been unlawful with all the legal consequences that would result from it. As a basis for her claim, the worker stated that the offer to change work hours could not constitute a valid attempt at repêchage, since the company hired a new full-time employee one year after her dismissal, and had also entrusted said new hire with tasks that she had previously carried out.
The Court accepted the worker’s application but its ruling was overturned by the Court of Appeal of Ancona selected by the company.
The Court of Appeal, in particular, declared lawful the dismissal on the grounds that:
The employee thus appealed to the Court of Cassation against the judgment issued by the Court of Appeal.
The ruling of the Court
The Court of Cassation upheld the decision of the Appeal Court by considering that the proposal to convert the employment relationship from full-time to part-time was sufficient to prove that the employer had attempted the repêchage.
The Court of Cassation also pointed out that it was not possible to consider the recruitment of a new resource valid either, since that recruitment had taken place as a result of the termination of another employment relationship, which was ended after the termination of the appellant’s employment relationship.
Conclusions
From the judgment in question, it follows that an attempt to repêchage by the employer must be regarded as proven when as an alternative to dismissal the employer offers to the redundant employee the chance to change work hours.
