Refusal to transform the employment relationship from full time to part time is evidence of a “repêchage” attempt

The Court of Cassation, with judgement No. 1499 dated 21 January 2019, confirmed the principle of law according to which, concerning dismissal due to justified objective grounds, it must be deemed proven that an attempt has been made to repêchage by the employer who, as an alternative to dismissal, offered to the redundant employees the chance to change their work hours.

The facts

A female worker, employed by a company operating in the insurance and tourism services sector and employed at the reception counter and ticketing area, was dismissed on justified objective grounds because of the closing of the area where she was employed. As an alternative to the dismissal, the Company had proposed transforming the employment relationship from full time to part time, which, however, the employee refused.

The worker then filed a lawsuit to the competent local Employment Court to claim that her dismissal had been unlawful with all the legal consequences that would result from it. As a basis for her claim, the worker stated that the offer to change work hours could not constitute a valid attempt at repêchage, since the company hired a new full-time employee one year after her dismissal, and had also entrusted said new hire with tasks that she had previously carried out.

The Court accepted the worker’s application but its ruling was overturned by the Court of Appeal of Ancona selected by the company.

The Court of Appeal, in particular, declared lawful the dismissal on the grounds that:

• the company had fully proved the effective divestment of the ticketing and reception counter area to which the employee was assigned;
• the proposal to transform the employment relationship presented to the worker shortly before the notice of dismissal and refused by her was proof of the attempt of “repêchage”;
• No recruitment had taken place to replace the worker, but the newly hired employee in question had replaced another employee.

The employee thus appealed to the Court of Cassation against the judgment issued by the Court of Appeal.

The ruling of the Court

The Court of Cassation upheld the decision of the Appeal Court by considering that the proposal to convert the employment relationship from full-time to part-time was sufficient to prove that the employer had attempted the repêchage.

The Court of Cassation also pointed out that it was not possible to consider the recruitment of a new resource valid either, since that recruitment had taken place as a result of the termination of another employment relationship, which was ended after the termination of the appellant’s employment relationship.

Conclusions

From the judgment in question, it follows that an attempt to repêchage by the employer must be regarded as proven when as an alternative to dismissal the employer offers to the redundant employee the chance to change work hours.