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23.042021

Trade union agreement on demotion: the power to dismiss is limited (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, April 2021)

The Court of Cassation, in ruling no. 701 of 18 January 2021, ruled on the employer’s power of dismissal, underlining that it is limited if the employee has previously signed a trade union agreement asking to be moved to a less senior job in order to keep his job.

In the case at hand, a worker was dismissed following the outcome of a mobility procedure under Law no. 223/1991. In particular, the worker – classified as a clerk – had been laid off under an extraordinary redundancy scheme due to the abolition of the function to which he was assigned, and had subsequently manifested his willingness to carry out tasks at a lower level, even with a reduction in the salary received.

This willingness was rejected by the employer, who started the mobility procedure for 15 employees and then concluded the trade union agreement to define its criteria. Finally, the employee was dismissed, with effects deferred to the end of the redundancy period.

The employee’s appeal against his dismissal was rejected by the first two instance courts, which held that the employee’s willingness to perform lower duties did not give rise to an obligation on the part of the employer to accept the employee’s request, rather only to the possibility of reaching an agreement.

The Court of Cassation, after receiving the employee’s appeal, noted that a clause in the trade union agreement signed with the employer established – in application of paragraph 11 of Article 4 of Italian Law no. 223/1991 – that “agreements concluded in the course of the procedures referred to in this Article, which provide for the total or partial re-employment of workers deemed to be redundant, may establish […] the assignment thereto of duties other than those performed”.

Therefore, the clause in the agreement set out the possibility for redundant employees to ask to be transferred to lower jobs and qualifications in order to avoid their dismissal. According to the Court of Cassation, the rationale of the rule referred to in the trade union agreement imposes a mandatory constraint on the employer, being this on the one hand a remedy to avoid dismissal and, on the other hand, a non-binding derogation for employees, who might refuse their demotion.

In fact, what prevails is “the interest of the employee in maintaining his job”: in this sense, the Court of Cassation also observes that trade union agreements that establish the criteria for choosing the employees to be laid off under a mobility scheme “do not belong to the category of normative collective agreements, so that they directly affect not the position of the employee, rather that of the employer, who must apply the agreed criteria in choosing the employees to be laid off under a mobility scheme“.

Therefore, the agreement is binding, for it is designed to protect the general interest and to safeguard employment levels.

Hence, the Court of Cassation upholds the worker’s appeal, concluding that the primary interest protected by Article 4, paragraph 11 of Italian Law no. 223/1991 is job preservation, rather than the stability of contractual economic conditions.

Source: Sintesi