ITA 
Court of Cassation, Labour section, judgment no. 3564 of 6 February 2023.
With its judgment no. 3564 of 6 February 2023, the Court of Cassation came back to judge on the “Chane in the service agreements” with direct employee transition to the subrecipient and dismissal appeal theme.
The case originates from the appeal of the dismissal by an employee dismissed because of the termination of the service agreement followed by the hiring by the subrecipient, in application of the NCBA provisions.
The Court of Appeals upheld the appeal and declared the dismissal unlawful on the finding that, although the circumstance, moreover documented by the minutes of the union agreement, of the direct transfer of the worker to the contracting company, which hired her, was uncontroversial, it should be declared, however, that the employer's termination was unlawful because the employer had violated its repêchage obligation, as the company had not proven the impossibility of the worker's reemployment.
The employer appealed to the Supreme Court, complaining that the establishment of a new employment with the contracting company implied, per se, that the worker had waived her right to appeal the dismissal.
The Court of cassation, confirming the Judge of First Instance’s judgment, rejected the appeal.
The Court clarified that: "if the NCBA provides, in the event of a termination of the services agreement, for the direct transfer of employees to the new subrecipient, this protection does not exclude, but is in addition to, the protection provided for the employee against the employer who has announced the dismissal. Thus, the limits on the original employer's right of termination continue to apply. Moreover, the employee's choice to begin the new employment with the subrecipient, does not result in a waiver of the right to challenge the dismissal, it having to be ruled out that the employee's waiver or acquiescence to the dismissal can be inferred from finding new employment. This is because such a choice, does not unambiguously imply the employee's definite intention to accept the dismissal" (Court of Cass. no. 29922/2018; Court of Cass. no. 12613/2007).”.