There is no violation of the repêchage obligation if the employee does not want to transfer to another office

The Court of Cassation, in its ruling of 16 March 2021, no. 7360, established that where the employee dismissed for justified objective reasons had made themselves available for transfer only in certain areas, the employer must prove it is impossible to relocate them in those offices to avoid incurring in the repêchage obligation violation.

Facts of the case

An employee appealed against her dismissal for justified objective reasons following the closure of the local unit where she was employed as a store manager.

The relevant Court of Appeal, changed the first instance ruling, rejected the appeal presented by the employee, claiming the lack of violation of the repêchage obligation because she was only willing to be transferred only to one of the offices of the employer, located in Campania or lower Lazio.

The employee appealed against the court’s decision.

The Supreme Court of Cassation’s ruling

The Court of Cassation confirmed the ruling of the District Court and, taking up some of its established guidelines, stated preliminarily that: “in the matter of dismissal for a justified objective reason, it is up to the employer to allege and prove the impossibility of repêchage of the dismissed employee, as a requirement of the legitimacy of the employer’s termination. The  employee does not have to provide evidence of the assignable positions, as a gap between those burdens cannot be classified from a procedural point of view.” (see ruling no. 5592/2016; ruling  no. 12101/2016 and ruling no. 160/2017).

For the Court of Cassation, this burden is discharged by the employer when it proves that there is no possibility of relocating the employee dismissed in an office included within the area where they are willing to move. Although the employee does not have to provide any evidence, defining the spatial scope of interest in the judicial application, it allows the employer not to make claims about the possible relocation in offices located in different areas

On these grounds, the Supreme Court rejected the employee’s appeal, deeming that the respondent company had met its burden of proving that it did not have any vacancies in Campania and lower Lazio.

Other related insights:

• The repêchage obligation also exists in the event of collective redundancy and trade union agreement
• Refusal to transform the employment relationship from full time to part time is evidence of a “repêchage” attempt
• The “new” 2103 of the Italian Civil Code: Stricter repêchage obligation