The transfer of the worker is not subject to a burden of form
Case ref: Court of Cassation, Employment Section, Judgment no. 12029 of 19 June 2020
The Court of Cassation has recently ruled on the individual transfer of workers, regarding the applicability of the forfeiture of rights regime pursuant to Article 32(1)bis Law no. 183/2010 and the requirements of form.
The case originates from the appeal filed by a worker who was the recipient of two transfer orders: the first was issued following formal notification of “non-approval” by the military administration (client) and the second was justified by complaints from clients and repeated reports of dislike by a new client.
The first transfer was challenged out-of-court in September 2009 and in-court in November 2013: therefore, according to the Court of Appeal, the appellant was deprived of the right to have illegality established pursuant to Article 323(c) and 1bis of Law. no. 183/2010.
With regard to the second transfer, the Court noted that the clause of “non-approval” was provided for in Article 20 of Presidential Decree no. 751/1977 for contracts with the military and that the client’s non-approval, even if not expressed in writing (as in the present case), was an objective condition attributable to technical, organizational and production requirements pursuant to Article 2103 of the Italian Civil Code.
With regard to the first transfer, the Court of Cassation confirmed the judgements on the merits by citing the precedent of the United Sections (no. 4913/2016) according to which «Article 32, paragraph 1 bis, of Law no. 183 of 2010, introduced by Decree Law no. 225 of 2010, converted with amendments by Law no. 10 of 2011, in providing for the deferment until 31 December 2011 of the entry into force of the provisions relating to the sixty-day period for contesting dismissal, applies to all contracts to which this regime is extended and concerns all areas of novelty referred to in the new Article 6 of I. no. 604 of 1966».
In particular, as specified by the Unified Appeals Division, the postponement (to 31/12/2011) of the applicability of the new forfeiture of employment is justified by the need to avoid that the immediate commencement of a new forfeiture of employment could prejudice those who, intending to challenge the termination of the employment relationship or the other types of employer’s acts covered by the provision, find themselves unwittingly incurring the forfeiture of employment. Moreover, «there would be no justification, in light of the principle of equality, for a differentiation limiting such a deferment to the sole hypothesis of an appeal against dismissal and excluding the others (including – as in the case brought to the attention of the Court – the challenge of the legitimacy of the term of the contract)».
On the basis of these considerations, the Court of Cassation upheld the decision of the Court of Appeal.
Also with reference to the second transfer, the Supreme Court confirms the judgment on the merits by excluding «the possibility of an analogical application to the transfer of the rule referred to in Article 2(2) of Law no. 604/1966, resulting from the amendments introduced with Law no. 92/2012, namely the obligation for the employer to indicate the reasons for its measure at the same time as the communication of the same». In this regard, the Court of Cassation reiterates that «the communication of the transfer of the worker, as well as the request of the reasons and the related answer, in the absence of a different provision, are subject to the general principle of freedom of form (Cassation no. 109/2004)».
According to the Judges, the transfer measure is not subject to any burden of form and does not «necessarily contain the indication of the reasons, nor does the employer» have «the obligation to respond to the employee who requests them (unless the legitimacy of the transfer is challenged, in which case the employer has the burden of proving in court the well-founded reasons that determined it and not being able to limit itself to denying the existence of the reasons of illegality which are the subject of the counterparty’s allegation and probative request (Court of Cassation no. 11984/2010)».