Stefano Rossi – 08 April 2013
Outsourcing justifies dismissal if the impossibility of "repechage" of the worker is demonstrated. This was specified by the Cassation with sentence 6346 of last March 13th. In fact, a drug research, production and marketing company decides to outsource the nursing service for employee pre-employment and follow-up visits. The nurse in charge of the service is thus fired for suppression of the job. However, the woman's appeal was rejected by the court and then by the Court of Appeal. The latter, in particular, confirms the dismissal arguing the legitimacy of the assignment of the service to an external company: for the judges, the suppression of the job and the dismissal are supported by valid reasons inherent to the productive activity and the organization of labour, provided for by article 3 of law 604/1966. Concerning the worker's obligation to repechage, the Court states that the nurse had not concretely indicated the job position in which she could be re-employed. The case reaches the Supreme Court. And the Court, rejecting the appeal, maintains the genuineness of the service contract because the outsourced nursing activity is extraneous to that of the pharmaceutical company. The legitimate suppression of the job therefore allows the employer to fire the employee for a justified objective reason, having demonstrated the impossibility of her internal relocation. In fact, the company has documented having hired, in the 12 months following the dismissal and throughout the country, a quality control officer and an electrical maintenance technician: professionals unrelated to those of the dismissed nurse. In this context – reads the sentence – it was up to the employee to indicate in a concrete way (and not in a generic way, as she had done) the job positions in which she could be reemployed. The pronouncement follows the sentence 7512 of 2012, with which the Cassation had analyzed the case of dismissal for suppression of the job due to the crisis and the collapse of turnover. The Court had clarified that, although the proof of the impossibility of using the worker in tasks other than those previously performed weighs on the employer, the worker must still collaborate in ascertaining the possibility of being used in a different and profitable way, indicating the other jobs to which he could be relocated. However, with sentence 11356 of 2011, the Cassation clarified that the failure to hire new workers in the department indicated for the possible re-employment of the worker fired for justified objective reasons is not sufficient to consider the repechage obligation fulfilled.
Stefano Rossi – Il Sole 24 Ore – read on http://24o.it/QsF5k