For the purpose of the obligation of ‘repêchage,’ it is essential to evaluate the classifications provided by CCNL

The Corte di Cassazione, with order no. 31561 dated November 13, 2023, has revisited the issue of dismissal for justifiable objective reasons, confirming its stance that, for proving the correct fulfillment of the ‘repêchage’ obligation, it is crucial to verify if the hirings made after the employer’s termination can be attributed to the same level at which the dismissed employee was classified.

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The Case at Handrepêchage obligation

A female worker, employed as a cashier in a bar, legally challenged the dismissal served to her for justifiable objective reasons following the abolishment of her work position.

Following the first instance judgment, which established the illegitimacy of the termination, the employer appealed.

The Corte d’Appello, overturning the first-instance decision, rejected the challenge to the dismissal and confirmed its legitimacy.

The Corte Territoriale specifically found:

  1. a) On one hand, the actual abolishment of the cashier position to which the worker was assigned;
  2. b) On the other hand, the lack of useful skills on the part of the worker to be assigned to other tasks.

In the verdict, concerning this latter point, it is stated that the worker had only ever performed cashier duties and never those of an attendant at the counter or tables, tasks that were subsequently assigned to newly hired personnel.

The worker contested the Corte d’Appello’s judgment on multiple grounds.

The Decision

The Corte di Cassazione, overturning the lower court’s decision, notes preliminarily that the employer, in fulfilling the ‘repêchage’ obligation imposed in case of dismissal for justifiable objective reasons, cannot overlook a careful assessment of the classifications provided by the collective agreement applicable to the employment relationship.

According to the Giudici di legittimità, “in the case of dismissal for justifiable objective reasons, the reference to the levels of classification established by the collective bargaining cannot be an insignificant circumstance but rather constitutes an element that the judge must evaluate”.

Therefore, according to the judgment, the contractual classification is an element that the judge must consider to ascertain in concrete terms whether the dismissed individual was capable – based on objectively verifiable circumstances put forth by the employer and considering the specific training and entire professional experience of the worker – of performing the tasks of those who were newly hired, albeit classified at the same or a lower level.

Not finding this evaluation in the contested lower court decision, the Corte Suprema accepted the appeal filed by the worker.”

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