ITA 
Published on Sole24Ore – NT Lavoro – on 01/11/2022.
For the legitimacy of the dismissal for suppression of job and the ascertainment of the repechage impossibility it is necessary to verify the lack of job positions respective to the duties assigned to the employee and carried out by him.
In the case decided by the Court of Cassation, with the judgment n. 30950 of 20 October 2022, the employee dismissed for suppression of the contractually assigned job of administrative clerk, challenged the legitimacy of the measure claiming that he had in fact held the position of branch manager, which was attributable to a higher category level and never abolished.
The Court of first instance upheld the employee’s claims, while the Court of Appeal, still confirming the right to the higher category and the related salary differences, considered the dismissal legitim noting the existence of the company’s restructuring and the suspension of administrative clerk job.
According to the Court of Appeal, in fact, the repechage impossibility had been correctly verified with reference to the contractually provided task and it was not to be extended to the different category ascertained at trial, since it was subsequent to the dismissal.
Hearing the issue, the Court of Cassation reputes contradictory the argument followed by the Court of Appeal, which first recognize the employee’s performance of task linked to different and higher job category, but then does not take this into account when verifying the possibility of redeployment in the company.
According to the Court of Cassation, in fact, the legitimacy of the dismissal for suspension of job and the repêchage impossibility ascertainment imposed to the judge to verify "that no other job position which corresponds to the tasks effectively assigned to the employee would be avaible".
On the legitimacy of the dismissal for objective just reason, the Cassation recalls that Article 3 L. 604/1966 requires the suppression of the work sector or department o job to which the employee was assigned, since it isn’t necessary to suppress of all the tasks previously assigned to him and the traceability of such suppression to employer choices aimed at engraving on the company’s structure and organization.
In a different respect, the legitimacy of the dismissal also presupposes the impossibility of redeploying the redundant employee to different tasks, an element unexpressed by the law but justified by the constitutional protection of employment.
The Court concludes by pointing out that the burden of proving the aforementioned requirements is on the employer, who may also resort to presumptions, being excluded on the employee the burden of proving the assignable posts.