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30.102018

Workers refusing to carry out duties not corresponding to their position is grounds for dismissal (Il Quotidiano del Lavoro de Il Sole 24 Ore, 30 Octobre 2018 – Alberto De Luca, Gabriele Scafati)

With a recent order (no. 24118 of 3 October 2018, the Court of Cassation has once again voiced its opinion on the lawfulness or unlawfulness of the refusal of a worker to comply with the employer’s request to perform lower rank duties than those to which he/she is entitled.
The dispute started with the request made to a woman cook employed in a school to distribute meals after preparation. Having disregarded the request and refused to carry out the duties deemed lower, the employee, following a few disciplinary actions short of termination, was dismissed and appealed to the judges in charge to obtain annulment of the dismissal, in addition to the disciplinary actions.
Following annulment of dismissal in both lower courts, the employer filed an appeal before the Court of Cassation, claiming that the provisions regulating (i) the position of hierarchical superiority of the employer in respect of the employees (Article 2086, Italian Civil Code), (ii) the diligence due by the workers (Article 2104, Italian Civil Code) and finally (iii) the freedom of private economic initiatives (Article 41, Italian Constitution) had been violated and misapplied.
Indeed, the defence arguments were based on the assumption that the principles by virtue of which a worker cannot refuse to perform a duty required – unless following the institution of legal proceedings seeking and obtaining «that the worker’s duties be related to his/her professional qualification» – had been erroneously misapplied.
The Court of Cassation accepted the employer’s appeal, confirming that a worker’s refusal to comply with the duties required is justified only if it is proportionate and in line with the principle of good faith, in the light of a general evaluation of the behaviour of both parties (see, inter alia, Court of Cassation, no. 12001/2003).
More specifically, the Court of Cassation ruled by accurately describing the residual nature of the refusal to carry out lower duties (so-called non-fulfilment exception); only if the employer’s non-fulfilment is so serious that it affects in an irreparable manner the vital needs of a worker, or exposes the worker to a criminal liability involved in the performance of the different duties, can a worker’s refusal be considered legitimate (see, inter alia, Court of Cassation no. 836/2018, Court of Cassation no. 12696/2012 and Court of Cassation no. 25313/2007).


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