By judgment No. 429 of 27 April 2023, the Court of Turin established that resignation for just cause giving entitlement to the unemployment allowance ‘Naspi’ does not require the worker to prove that the transfer was unjustified if the new place of work is more than 50 km away from his/her residence.
The case stemmed from the resignation for just cause submitted by the worker in connection with the transfer of her place of employment from Turin to Trieste. In particular, the resignation was due, as indicated in the notice of resignation, to the refusal to ‘move to another location more than 80 km away from her residence’.
The request to access Naspi following the resignation following the transfer was rejected by National Social Security Entity (INPS, Istituto Nazionale della Previdenza Sociale). INPS, by citing message No. 369/2018, noted that, in such a case, in order to be eligible for the Napsi allowance, the employee must prove the just cause of the resignation and, therefore, that the transfer was not supported by technical, organisational and production reasons.
In upholding the worker’s appeal, the Court of Turin disregarded INPS’s practice also in light of the reference legislation, i.e. Italian Legislative Decree No. 22/2015.
In fact, in the Court’s view, the fundamental requirement for access to the Naspi treatment (in addition to employment and contributions) is the involuntary loss of employment. According to the judges, in order to assess whether the worker has ‘involuntarily lost his/her job’, it is necessary to ascertain whether the decision to resign is the result of a spontaneous and voluntary decision by the worker or induced by significant changes in working conditions resulting from the transfer to another location imposed by the employer.
According to INPS, this requirement is deemed to be met when there is a mutual termination of the employment relationship resulting from the worker’s refusal to transfer to another office of the same company that is more than 50 km away from the worker’s residence or can be reached on average in more than 80 minutes by public transport. On the other hand, a resignation that the worker claims took place for just cause following a transfer to another company location is eligible for the Naspi allowance, provided that the transfer is not supported by ‘proven technical, organisational and production reasons’ provided for in Article 2103 of the Italian Civil Code. Therefore, in the event of resignation, the worker will be able to access the Naspi only if he accompanies the relevant application with documentation (such as a declaration in lieu of affidavit pursuant to Articles 38 and 47 of Italian Presidential Decree No. 445/2000) showing at least his/her willingness to defend himself in court against the employer’s unlawful conduct (enclosing letters of summons, claims, complaints, writs of summons, urgent applications pursuant to Article 700 of the Italian Code of Civil Procedure, as well as any other suitable document), undertaking to notify the outcome of the judicial or out-of-court dispute.
Based on the foregoing, therefore, the lower court judge found that the same institution, in guaranteeing the Naspi treatment in the case of mutual termination, implicitly confirms that the transfer to another location 50 km away from the usual location or within 80 minutes by public transport entails a significant change in working conditions.
Therefore, the worker’s decision to resign after having undergone a transfer of that nature, irrespective of the lawfulness or otherwise of the employer’s organisational choice, must be considered to be an involuntary choice of the worker that led to the decision to resign and, therefore, entailed an ‘involuntary loss’ of employment.
Other related insights:
INPS, with its message no. 2797 of 14 July 2020 provided clarifications related to private and public workers, as well as NASPI (Italian unemployment) beneficiaries, who work for brief periods in Germany.
Specifically, for private employees, they first underlined that the applicable legislation, based on the provisions contained in article 13, paragraph 1 of the EC Regulation 883/2004, is that of the State of residence of the worker as long as substantial work is performed there. Moreover, for the purposes of determining the applicable legislation, marginal employment should not be considered, i.e. work that is not very significant in terms of time and remuneration.
The message in question clarifies that if the worker is employed in Italy and performs a job of a marginal nature in Germany or one that is not substantial, the applicable legislation is solely Italian with the consequent obligation for the worker to inform INPS of his employment situation. Failure to comply will result in forfeiture of recognition of the German insurance period if considered as marginal by INPS.