In determining the classification of a worker we cannot ignore the so-called three-phase process.
Court of Cassation, Employment Section, Judgement 8 February 2021, no. 2972
The case originates from an appeal lodged by an employee to obtain a higher job level than the one provided for contractually, with the corresponding differences in salary, whose case had been rejected in first instance and partially upheld on appeal.
The employer appealed against the judgement of the Court of Appeal, claiming that the Court had recognized the right to the higher classification claimed by the appellant without taking into account the principles established by Supreme Court caselaw, according to which, in interpreting a collective bargaining agreement, especially a company level agreement, for the purposes of classifying staff, consideration of specific professional profiles is of primary importance, rather than the declarations containing an abstract definition of professional levels.
The Supreme Court rejected the employer’s appeal, on the basis of the following reasons.
According to the Judges “in determining the classification of the employee, we must take account of the three-step process”.
This process, reiterated over the years by the Court, “develops in three successive stages: factual ascertainment of the work actually performed, identification of qualifications and levels provided by the collective agreement for the category and a comparison between the first and the contractual rules of the second, without which any claim would be rejected”.
Citing the shared dicta of the Supreme Court (see Cass. 27/9/2016 n. 18943), the Judges stated that compliance with the so-called “three-phase” criterion, which cannot be ignored in the logical-juridical procedure aimed at determining the classification of the worker, does not require the judge to adhere slavishly to the repetition of a rigid and formalized sequence of actions, where it appears that each assessment, recognition and evaluation has found concrete input into the decisive reasoning, helping to establish the conclusions.
Specifically, the judges pointed out that the Court of Justice put forward a series of arguments confirming the existence of the elements put forward by the plaintiff as a basis for the right claimed, which led to the conclusion that the motivational paradigm enunciated by caselaw has been followed for the purposes considered here.
In particular, for the Judges “the District Court has first of all referred to the level VI, reserved for workers who perform duties with decision-making powers and operational autonomy limited to objectives. It also noted how the evidence, including that of a documentary nature, showed that the applicant had fulfilled the tasks attributed to her in total autonomy, selecting the aspects to be preferred in relation to the issues to be resolved. The Court also considered the variety of matters in relation to which the advice of the worker was required and the direct dialogue with the same management on relevant issues. Therefore, the Court appropriately concluded that the awarding of level VI to the appellant was not in line with the provisions of the National Collective Bargaining Agreement for the sector, given that the research and studies carried out by the employee were, in fact, fully acknowledged by the management, thus fulfilling the requisites of Level VIII, having the power to influence company decisions in the activity carried out”.
By virtue of all the above, the Supreme Court rejected the employer’s appeal because “the structure that underlies the decision that was appealed, responds to the canons that define a correct assumption of the facts of the case in the applicable norms, not giving decisive value to the alleged omission of any reference by the lower court, to the job profiles corresponding to the contractual declaration relating to the level claimed, given the exemplative nature of the same”.