Demotion, automatic compensation for damages and burden of proof (Guida al Lavoro de Il Sole 24 Ore, 31 August 2018 – Enrico De Luca, Elena Cannone e Antonella Iacobellis)

The Court of Cassation with judgement No. 17978 dated 9 July 2018 established that:

 – recognition of compensation for non-material damages is not automatic in the case of a “demotion” if it is not adequately proven;

 – when the employee alleges a demotion associated to a breach by the employer to meet the obligation established by art. 2103 of the civil code, it is the latter that must provide proof of proper fulfilment of said obligation.

On this matter, the Court of Cassation reiterated that “It must be considered that when an employee alleges a demotion associated to a breach by the employer to meet the obligation established by art. 2103 of the civil code, it is the latter that must provide proof of proper fulfilment of said obligation, either by proving the effective lack of demotion, or by proving that it was justified by the legitimate application of entrepreneurship or disciplinary powers, based on art. 1218 of the civil code, due to the impossibility of the performance due to a reason beyond its control”.

This verification conferred to the trial judge can be faced only by carrying out an investigation in three chronological steps in logical sequence: 1) practical verification of the work tasks actually carried out, 2) identification of the qualifications and categories of work established by the national collective bargaining agreement applicable to the industry sector, as well as 3) comparison between the results of the first investigation and the rules established by the contractual regulations identified in the second one.

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