In the event of a temporary downturn in production, the employer may second the employee in order not to disperse his professional skills
Supreme Court of Cassation, Employment Section, Order 17 September 2020, No 19413
The reason for sending an employee on secondment can also be of a non-economic or patrimonial nature in the strict sense of the word, but as a type of solidarity: what is important is that it does not result in a mere outsourcing of the work of others.
The case originates from an employee of a car manufacturing company that suffered a temporary downturn in production and with employees on furlough, who was seconded to a company manufacturing mechanical components for cars.
The seconder’s interest in the posting, caused by the temporary production crisis, was not to disperse the professional patrimony of the worker, but rather to increase the “individual functional versatility”.
At the end of the secondment, the worker filed a claim in Court, challenging the secondment as fraudulent and in any case in violation of the terms of Article 30 of Legislative Decree no. 276 of 2003, which requires the establishment of an employment relationship with the secondee company.
The Court of Appeal, overturing the decision of the court of first instance, rejected the worker’s claim on the grounds that the requirements of legitimacy of the posting, i.e. the interest of the seconder and the temporary nature of the secondment, existed.
The Court of Appeal acknowledged the interest of the seconder, caused by the well-documented temporary slump in production, not to disperse the professional assets of the company, i.e. it’s skilled workforce. Furthermore, the Court pointed out that the secondment was also characterized by the requirement for it to be of a temporary nature.
The Supreme Court rejected the worker’s appeal and upheld the judgment of the Court of Appeal. According to the Court of Cassation, in fact, the Court of Appeal “with adequate and correct reasoning, based on the examination of the documentation produced and the conduct of the parties, that the interest was actually that indicated: the increase in the individual professional versatility of the worker, in a context of temporary business crisis, while waiting for the production to recover, in order not to disperse the professional skills of each employee. The same Court commented that the worker himself had implicitly endorsed the truth of this intent by not opposing the secondment at the time”.
In this regard, the tasks assigned to the worker during the secondment, which were different from those performed in his usual job “can be a measure of the increase in the worker’s skills”, so much so that he went on to apply for jobs at a higher level.
The Supreme Court judges, in upholding the decision of the Appeal. Court went on to say that “the interest in the posting may also be of a non-economic or patrimonial nature in the strict sense, but a type of a solidarity: the important thing is that it does not result in outsourcing the work of others”.
With reference to the requirement of temporariness, which must exist for the entire duration of the posting, the Supreme Court rejected the worker’s grievances highlighting how “it becomes irrelevant the argument put forward by the applicant, namely that the crisis had ended earlier (6.1. 2010) than the posting, because the interest, as specified above, has been identified in the increase of professional versatility, although in a situation of temporary business crisis and, therefore, the brief period of time between the end of the crisis and the end of the posting itself was justified”.
Finally, from the point of view of the possible consequences of sanctions, the Supreme Court of Cassation considered as correct the assumption according to which “the case provided for by Article 30, paragraph 3D.
Legislative Decree no. 276 of 2003 (posting that involves a change in duties that requires the workers’ consent and posting with transfer to a production unit located more than 50 km from the one to which the worker is assigned that requires the existence of proven technical, organizational, productive and replacement reasons)” – as in the case in point – “is not sanctioned with the integral protections, unlike the hypothesis set forth in art. 30 par. 1 Legislative Decree no. 276 of 2003”.
In fact, the Court of Cassation goes on to say that “the right of the worker to request the establishment of an employment relationship with the secondee company who used the service is provided for only in the case of Article 30, paragraph 1 of Legislative Decree no. 276 of 2003 and not also for the one referred to in paragraph 3 (ubi lex voluit dixit)”.
With regard to the criterion of interpretation, the Supreme Court points out that “paragraph 5 bis of Article 18 of Legislative Decree No. 276 of 2003 states that the penalties provided therein (now decriminalized, see Criminall Case No. 10484 of 2016) can be imposed only in the case of posting without the requirements of Article 30 paragraph 1, thus excluding the one referred to in paragraph 3.”
The legislator’s intention, continues the Supreme Court of Cassation in the rule under examination, “was therefore to provide that the hypothesis considered more serious, i.e. secondment without the requirements of interest and temporariness, should be given civil protections of a “constitutive” and “administrative” type (before they were criminal), while for the hypotheses governed by paragraph 3, only damages should be granted”.
This approach, concludes the Court of Cassation, is reasonable and balanced with respect to the underlying interests of the parties and that a worker can perform his services with a person other than his employer, where certain prerequisites exist.