Unlawful company transfer and “double remuneration”

The Court of Trent, with its ruling no. 86 of 2020, re-examined the issue of so-called “double remuneration” of workers whose employment changes hands due to a company sale, if such transfer is declared unlawful. The case law orientation on this issue has been in conflict for a long time.

According to a recent ruling by the Cassation Court (judgement no. 9093/2020) in the case represented above the worker should be granted double remuneration; therefore, the transferor employer may not deduct from remuneration due for the past what the same worker would have received, for remuneration, for work performed for the “former transferee”.

The Court of Trent, deviating from such orientation, excludes that the worker, following annulment of the company transfer, can be part of two jobs (one “material job” for the previous transferee, and one “legal job” for the former transferor that originates as the effect of the ruling). In such case, the two employment relationships regard the same job and, consequently the same remuneration for such, even of the legal source of the obligation is different.

Based on these premises, the trial judge established that if a company transfer is declared unlawful, the worker who returns to the employment of the transferor cannot ask for payment of remuneration that he would have received during the period between the transfer and ruling if during such period he received remuneration from the transferee.