In the event of a temporary downturn in production, the employer may second the employee in order not to disperse his professional skills<\/p>\n\n\n\n
Supreme Court of Cassation, Employment Section, Order 17 September 2020, No 19413<\/em><\/p>\n\n\n\n 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.\nThe 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. In caso di temporanea crisi produttiva, il datore di lavoro pu\u00f2 distaccare il dipendente al fine di non disperderne il patrimonio professionale Corte di cassazione, sezione lavoro, ordinanza 17 settembre 2020, n. 19413 L’interesse al distacco pu\u00f2 essere anche di natura non economica o patrimoniale in senso stretto, ma di tipo solidaristico: ci\u00f2 che rileva \u00e8 che […]<\/p>","protected":false},"author":1,"featured_media":1891,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[44],"tags":[],"yoast_head":"\n
\nThe seconder\u2019s 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 \u201cindividual functional versatility\u201d.
\nAt 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.
\nThe Court of Appeal, overturing the decision of the court of first instance, rejected the worker\u2019s 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.
\nThe 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\u2019s skilled workforce.\nFurthermore, the Court pointed out that the secondment was also characterized by the requirement for it to be of a temporary nature.\n
\nThe Supreme Court rejected the worker\u2019s appeal and upheld the judgment of the Court of Appeal.\nAccording to the Court of Cassation, in fact, the Court of Appeal \u201cwith 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\u201d.
\nIn this regard, the tasks assigned to the worker during the secondment, which were different from those performed in his usual job \u201ccan be a measure of the increase in the worker\u2019s skills\u201d, so much so that he went on to apply for jobs at a higher level.
\nThe Supreme Court judges, in upholding the decision of the Appeal. Court went on to say that \u201cthe 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\u201d.\n
\nWith reference to the requirement of temporariness, which must exist for the entire duration of the posting, the Supreme Court rejected the worker\u2019s grievances highlighting how \u201cit 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\u201d.
\nFinally, from the point of view of the possible consequences of sanctions, the Supreme Court of Cassation considered as correct the assumption according to which \u201cthe 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\u2019 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)\u201d \u2013 as in the case in point \u2013 \u201cis not sanctioned with the integral protections, unlike the hypothesis set forth in art. 30 par. 1 Legislative Decree no. 276 of 2003\u201d.
\nIn fact, the Court of Cassation goes on to say that \u201cthe 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)\u201d.
\nWith regard to the criterion of interpretation, the Supreme Court points out that \u201cparagraph 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.\u201d
\nThe legislator\u2019s intention, continues the Supreme Court of Cassation in the rule under examination, \u201cwas 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 \u201cconstitutive\u201d and \u201cadministrative\u201d type (before they were criminal), while for the hypotheses governed by paragraph 3, only damages should be granted\u201d.\n
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.<\/p>","protected":false},"excerpt":{"rendered":"