The Supreme Court of Cassation, by Order no. 18959/2020, confirmed that the interest in posting may also be of a non-economic or wealth nature in the strict sense, but also of a solidaristic type. The important thing is that it does not turn out to be merely third party temporary work.
This case originates from posting of a work of a automobile company, in a temporary production crisis, to a manufacturer company of mechanical parts for cars. The posting was orders to not lose the professional experience of the worker and, thus, to increase his “individual functional versatility”. Moreover, the posting would have involved a change of the duties assigned to the worker and the distance between the two companies (posting company and host) was greater than 50 kilometres.
The Court of Appeal, overturning the first instance ruling, had rejected the worker’s appeal, aimed at obtaining an employment relationship with the host company, for lack of the legal requisites for the posting.
According to the Court of Appeal, the legal interest of the posting company was represented by the usefulness of not losing, during the temporary production crisis, the professional wealth of the company composed of the expertise of each employee, including the appealing worker.
Objecting to the trial court ruling, the worker appealed to the Cassation Court.
The Court of Cassation, in confirming the trial judges’ ruling, affirmed that the interest in posting may also be of a non-economic or wealth nature in the strict sense. In the case in question, the interest of the posting company consists in increasing the worker’s professional versatility in a context of a temporary company crisis and while waiting for production to restart. The duties assigned to the posted employee were actually different from those performed at the posting company, with an improvement in his professional experience.
Moreover, the Court of Cassation established that violation of the case contained in paragraph 3 of art. 30 of Italian Legislative Decree no. 276/2003 (posting that involves a change in the duties that requires the consent of workers and posting with transfer to a production unit located more than 50 Km from where the worker is assigned that required the existence of proven technical, organisational, productive and replacement reasons) should not be sanctioned with equitable relief, unlike the case as per paragraph 1 of the same article.
According to the Supreme Court, the possibility that the involved worker can ask for the establishment of employment with the host is only allowed for the case in art. 30, paragraph 1, of Legislative Decree 276/2003 and not also for that as per paragraph 3.
According to the Court of Cassation, the intention of the law is to include that for the case considered the most serious of the posting without the requirements of the interest and temporary nature be attributed the “constitutive” type civil protection and “administrative” type sanction (before the criminal type), while for the case governed by paragraph 3 only the “compensation” type civil protection must be recognised.
According to the Court of Cassation this approach is reasonable and balanced compared to the underlying interest of the parties so that a worker can perform his job at a company other than his employer, in the presence of certain assumptions and/or through particular spatial and time procedures: it is one thing that in the structure of the institute the fundamental interests and timing are lacking; another instead is represented by the way that the posting is implemented and in this case, that it is not in contrast with the legal institution, fully justifying a different protection.
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