Mandatory repêchage in affiliated companies: the burden of proof must be borne by the employer

The Court of Cassation, with judgment No. 160 dated 05 January 2017, issued a new judgement on mandatory repêchage in affiliated companies. In the case under review, an employee was dismissed for justified objective grounds by a subsidiary company whose 80% was owned by another one, without offering any repêchage possibility. Against the dismissal, the employee submitted a request to the Court of first instance to obtain recognition of the existence of a single employer in the employment relationship and a declaration of unlawfulness of the dismissal issued, with the consequent joint and several decision against the two companies for failure to fulfil the repêchage obligation. The Court of first instance, as well as the Court of Appeal having territorial jurisdiction, in rejecting the employee’s claim, stated that the worker had to prove the essential factors for the recognition of the existence of a single employer, such as the integration between the activities carried out by the various companies of the group, the management, technical and financial coordination etc. Finally, the worker submitted an application to the Court of Cassation. According to the Supreme Court, the trial courts failed to consider two elements, including the clear connection between the two companies on the basis of which the identification of redundant personnel should include the entire corporate group. Moreover, in the opinion of the Court of Cassation, the employer must bear the burden of proof related to the fulfilment of the repêchage obligation by virtue of the proof-proximity principle.