ITA 
A worker, who in adhering to the union agreement accepts a demotion, cannot be dismissed.
Court of Cassation, employment section, judgment no. 701 of 18th January 2021
The employer may not unilaterally disregard the union agreement that – in application of art. 4(11) of Law 223/91 – provides for the worker to accept demotion in order to avoid dismissal.
The case originates from the dismissal of an employee as part of a collective redundancy procedure, despite the latter’s willingness to accept a demotion, on the basis of the company’s agreement pursuant to the above Article 4(11).
The Court of Appeal rejected the employee’s appeal, in the light of the literal interpretation of the union agreement, that the right of redundant workers to ask to be assigned to lower duties did not imply that “the company had to subjected to the exercise of a declared right, finding itself in the position of accepting or not the novation of the relationship”.
The Court of Cassation did not agree with this conclusion (i) considering it contrary to the rationale of art. 4(11), of which said trade union agreement was an expression, and (ii) in view of the nature and mandatory purpose of such agreements.
As is well known, the above-mentioned provision provides that “The agreements entered into in the course of the procedure referred to in this article, which provide for the total or partial reabsorption of workers deemed to be surplus to requirements, may establish, also as an exception to the second paragraph of art. 2103 of the Italian Civil Code, their assignment to duties other than those performed”.
For the Court “art. 4(11) of the Law no. 223 of 1991, stating that, in the course of collective redundancy procedures, the trade-union agreements, to the aim to guarantee the reemployment at least to a part of the workers, can establish that the employer assigns, as an exception to art. 2103 of the Civil Code, tasks other than those performed, not only implies the possibility of assigning worse tasks, but does not preclude the assignment of inferior tasks (Cass. No. 11806 of 2000 and, among the most recent, Cass. No. 6289 of 2020 and No. 14944 of 2014) “.
According to the Court of Appeal, the worker’s interest in maintaining his job prevails over the interest protected by art. 2103 Civil Code and this is not only where the demotion is requested of the worker, but also when the initiative was taken by the employer, provided that there is the consent of the worker and there exist the conditions that would have justified the dismissal in the absence of the agreement.
According to the Judges “art. 2103 of the Civil Code is interpreted in the light of balancing the employer’s right to run a productive and efficient business and that of the employee to the keep his job, in line with the “ratio” of numerous regulations, such as the said Art. 4(11) (as most recently reformulated by art. 3(2) of Legislative Decree no. 81 of 2015)”.
As a result,”where the demotion represents the only alternative to dismissal, there is no need for a demotion agreement or a request by the employee in this sense prior to or at the time of the dismissal, but it is the employer’s burden, in implementation of the principle of fairness and good faith, to put to the employee the possibility of re-employment with lower duties compatible with his professional background (Cass. No. 23698 of 2015)”.
Allowing for the foregoing, the Court of Cassation ruled on the nature of the trade union agreements under consideration, observing how the same establish the criteria for choosing the employees to be made redundant and do not belong to the category of collective bargaining agreements rules “with the consequence that the same directly affect not the position of the employee, but that of the employer, who in the choice of employees to be made redundant must apply the agreed criteria (cf. Cassation no. 3271 of 2000)”.
The Court of Cassation goes on to say that “in order to overcome the constraint constituted by art. 39 of the Constitution, in relation to the essential need for such an agreement to be effective towards the entire business community, the constitutional jurisprudence has configured the union agreements entered into in the context of the procedure in question as so-called management contracts, not belonging to the species of collective bargaining agreements; they, thus overcoming the constraint of art. 39 Constitution, affect the individual worker only indirectly, through the employer’s act of withdrawal, insofar as it is bound by law to comply with the selection criteria agreed upon by the trade unions (Constitutional Court sentence no. 268 of June 30, 1994; see also Court of Cassation no. 4666 of 1999)”.
Therefore, the Supreme Court concludes that the managerial and compulsory function of the agreement aimed at protecting the general interest and safeguarding employment levels is expressed in the establishment of compulsory relationships that bind the collective parties and the entrepreneurs who sign them, and even in settling of conflicts of rights or interests.