News about repêchage: limits and sanctions by Paola Gobbi e Marco Tesoro Through two significant Court rulings, the Court of Cassation recently redefined limits and sanctions of the repêchage duty. As we know, in order for an economic individual dismissal to be considered as lawful, the proof of the actual abolition of the redundant job position is a necessary but not sufficient requirement. Indeed, the abolition of the redundant job position shall be directly linked to the employer’s choices aimed to affect the Company’ structure and organization, and the employer shall prove the impossibility to appoint the redundant employee to different job positions (c.d. repêchage duty). The repêchage duty is not regulated by the law, being created by Case law that constantly defines the related limits and sanctions of this obligation, also in light of the new laws regulating the dismissal (Legislative Decree no. 23/2015) and other aspects of the employment relationships (Art. 2103 of the Italian Civil Code). LIMITS Through the Court ruling no. 11413 published on May 11th, 2018, the Court of Cassation stated that there is no violation of the repêchage duty when there is heterogeneity between the job position abolished and those available within the Company and not assigned to the redundant employee. In this case, the employer dismissed the employee for abolition of the job position and afterwards hired new personnel to cover equivalent job positions. The employee then challenged the dismissal in Court claiming the violation of the repêchage duty because he should have been assigned to those job positions, that by the way were already available when he was dismissed. The Court of Cassation, confirming the previous decision of the Court of Appeal, rejected the employee’s claims stating that “the heterogeneity, in terms of skills and experience between the job position abolished and those available, eliminates the foundation of the repêchage duty, that requires that the redundant employee’s working energies can be usefully used for the alternative job positions available”. Furthermore, the Court of Cassation also stated that there is no violation of the repêchage duty because the new hiring were made after 6 months following the dismissal, “therefore it is reasonable to assume that the new hiring were due to new needs, and cannot be ignored that such job positions were already empty at the time of the dismissal”. SANCTIONS Through another recent Court ruling, the Court of Cassation defined the sanctions in case of violation of the repêchage duty (Court ruling no. 10435 filed on May 2nd, 2018). As we know, par. 7 of Article 18, Law no. 300/1970, provides that the judge can apply the reinstatement (under par. 4 of the same article) when «the fact grounding the economic dismissal manifestly does not exists». The abovementioned Court ruling analyses the par. 7 under two aspects: the notion of «fact grounding the economic dismissal» and the criteria to be used by the Judge to decide whether ordering the reinstatement or not. With reference to the first aspect, according to the Judge «the fact grounding the economic dismissal clearly does not exists» even when the job position has actually been abolished, but the employer violated the repêchage duty. According to the Judge, both the abolition of the job position and the respect of the repêchage duty are included within the definition of the economic dismissal, therefore “the law reference to the ‘fact grounding the dismissal’ shall be considered with reference to both aspects”. Therefore, even when only one of such aspects is not proved in Court – in this case, the respect of the repêchage duty – it applies par. 7 abovementioned, with the related sanctions. In this regard, this Court ruling is particularly interesting and innovative. The Court of Cassation confirmed the application of par. 7 only when the absence of the fact grounding the dismissal is “manifest”, meaning in case of “evident and easily verifiable absence of the requirements grounding the dismissal, allowing to show that the dismissal was clearly a pretext”. In such a case, according to the Court of Cassation, the judges shall decide whether granting the reinstatement or not by applying the general principles on damages provided by the Civil Law, with particular reference to the “extremely onerous” notion. According to the Court of Cassation, the abovementioned notion allows the Judges to grant damages instead of reinstatement even when the fact grounding the economic dismissal manifestly does not exists, if the “reinstatement would be extremely onerous for the employer, according to the circumstances of the single case”. CONCLUSIONS Also in light of the abovementioned Court rulings, given the actual need to abolish a job position, it is always essential to make a previous analysis of the Company’ structure before serving the dismissal, considering the consequences in case of the violation of the repêchage duty.
