Court of Cassation, Employment Section, Judgement no. 811 of 19th January 2021
The potential damage of assigning duties that are assumed to be lower, must be measured with regard to the context in which such demotion comes into play.
In the case in question, the Court of Appeal had recognized the existence of constructive dismissal (just cause for resignation) of a bank manager and had consequently rejected the claim by the Bank for violation of the stability pact, after having ascertained that the new duties assigned to the manager constituted a demotion considering, therefore, “irrelevant, for the purposes of evaluating the legitimate resignation for just cause, the actual trying out of the new duties assigned”.
The Bank appealed to the Supreme Court, claiming that in order to uphold the existence of a demotion, it would have been necessary for the employee to actually try out the new duties.
The Court of Cassation rejected the appeal and upheld the judgment of the court of first instance on the grounds that the potential damage of assigning duties that are assumed to be lower, must be measured with regard to the context in which such demotion comes into play.
Therefore, not every quantitative change in the duties entrusted to the worker is sufficient to constitute a demotion and, in establishing the existence, it is necessary to have regard to the impact of the reduction of duties on the professional level reached by the employee, his position in the company, and, with regard to the manager, also the importance of the role within the organization of the company.
According to the Judges, in fact, the provision in art. 2103 Civil Code. – formulated under the rules in force before Legislative Decree of June 15, 2015, no. 81 – is intended “to defend the right of the worker to the use, for the improvement and growth, experience and expertise acquired in the previous phase of the relationship and to prevent, consequently, that the new tasks cause a loss of professional potential acquired or refined up to that time, or that, on the other hand, entail an underutilization of the employee’s professional assets, having regard not only to the intrinsic nature of the activities carried out by the employee but also to the degree of autonomy and discretion in their exercise, as well as to the employee’s position in the context of the company’s organization”.
A violation of art. 2103 of the Civil Code “can therefore be assumed, in view of the substantial interests protected by the legislature, when the qualitative change in the duties assigned to the employee determines in practice a progressive impoverishment of his cultural background and a loss of that knowledge and experience required by the type of work performed, which ultimately translates into a gradual tarnishing of his professional skills. (see Cass. 14/12/2018 n. 32546)”.
As a result, the Supreme Court ruled that “the judgment under appeal has complied with the principles set out above”.
And in fact, the appeal court had found that the demotion had already happened in practice, given the assignment of duties not corresponding to the degree of professionalism already reached by the manager. In essence, continues the judgment, “the Court found it had been adequately proven that the worker had been deprived of duties that had a level of autonomy and relevance within the business organization comparable to those previously held”. And this much was sufficient to amount to a just cause for resignation and exclude the violation of the stability pact complained of by the company.