ITA 
Published on Sole24Ore – NT Lavoro – on 10/02/2023
In the context of collective redundancies, the employer may limit the number of workers to be dismissed to a production unit provided that the notice of opening of the procedure indicates both the reasons limiting the redundancies to the employees of the unit in question and the reasons why he does not consider it possible to remedy them by transferring the employees to other production units. Thus, the Court of Cassation in its judgment 3437/2023 of 3 February.
In this case, one of the employees dismissed at the end of the collective procedure challenged the measure, contesting the decision to limit the number of employees to be dismissed to certain locations. The Court of Appeal, in accordance with the decision of the Court of First Istance, ascertained the illegitimacy of the dismissal, considering the identification of the employees made by the employer to be unfounded and unreasonable, in the face of a restructuring project that encompassed the entire company and in the absence of proof of the employee's unfungibility.
The company appealed to the Court of Cassation, arguing that the legislation excluded the comparability of employees when it was objectively incompatible with the company's needs for geographic reasons, since it was a company with operating sites hundreds of kilometres apart. The company also argued that preference should be given, among the legal selection criteria, to technical and production requirements, given the need to renew company strategies in order to safeguard competitiveness, since the reduction was targeted at specific technical profiles and not at fungible personnel.
The Supreme Court rejected the appeal. As a preliminary point, without prejudice to the general rule established by Article 5 of Law 223/1991, by virtue of which the identification of workers to be dismissed must be carried out in the context of the “company as a whole”, for the judges it is possible to limit the group to the employees of a specific department or territorial office where there are objective technical-productive needs, provided that the notice of the opening of the collective procedure states both the reasons limiting the redundancies to employees of the unit in question and the reasons why the employer considers that he cannot remedy them by transferring them to neighbouring production units. This information is required in order to allow the trade unions to verify the actual necessity of the collective planned redundancies.
If, on the contrary, the notice provides for a generic reference to the general situation of the company as a whole, without specifying the production units to be eliminated, as in the case at stake, the dismissals announced are unlawful for breach of the obligation to specifically indicate the objective business needs (Court of Cassation 22178/2018).
Under a different profile, the judges recall that the delimitation of the group of workers to whom the dismissal measure is addressed must be justified by the organisational needs behind the staff reduction, adequately set out in the notice of the opening of the procedure, in order to allow the trade unions to verify the link between the reasons determining the redundancy and the work units that the company concretely intends to expel.
The Court of Cassation, therefore, confirms the principle that, in such hypothesis, for the purposes of the exclusion of the comparison with the workers of equivalent professionalism employed in the production units not suppressed and located in the national territory, the circumstance that the maintenance in service of the worker belonging to the suppressed location would require his transfer to another location, with the related increase in costs for the company, is not relevant, per se, since the legal rule responds to the need to minimise the social impact of the reorganisation, since it cannot be a aprioristically excluded that the redundant worker would prefer a different dislocation to the loss of his job (Cassation 17177/2013; 32387/2019).
