Legitimate worker transfer even if their unusability in the original location was unproved (Norme & Tributi Plus Diritto – Il Sole 24 Ore, 19 November 2021 – Alberto De Luca, Debhora Scarano)

With its order no. 32506 of 8 November 2021, the Court of Cassation addressed the issue of judicial review of the technical, organisational and production reasons underlying transfers under art. 2103 of the Italian Civil Code. The case in question arose from an employee’s legal application for a declaration of the unlawfulness of the transfer ordered against him, with a consequent request for reinstatement at his original place of work and damages. The appellant believed that the reasons given for the transfer, i.e. the reduction in turnover at the original site where he was employed and the need to reduce the workforce, had been insufficiently investigated by the Court. An increase in company profits compared to the previous year and a new resource being recruited to the area the appellant had been assigned contradicted these reasons. The Court of First Instance and the Court of Appeal rejected the appellant’s requests, upholding the transfer’s legitimacy. The Court of First Instance found that the reasons supporting the transfer decision were consistent with the employer’s communication. It verified the Company’s turnover decrease, and considered the attached profit and loss account proving the increase in company profits to be insignificant, given Company’s overall figure. The worker appealed to the Court of Cassation, claiming that the Court of Appeal had erred in Law, in that it had assessed as evidence mere allegations provided by the employer, without the latter having fulfilled a burden of proof.

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