Recently, the Supreme Court has provided ideas for an interesting reflection on the transfer of worker(s). In the specific case, the employer had contested the employee’s unjustified absence, after she had not presented at the new assigned place of work, while the employee had contested the legitimacy of the transfer. As it happens in every judicial case, the Court reiterated that each case must be assessed in relation to the concrete circumstances – in order to verify whether, on the one hand, the transfer can be qualified as legitimate, and, on the other hand, whether or not the refusal of the employee is contrary to good faith – also recalling that even in the event of a transfer adopted in violation of art. 2103 Italian Civil Code, the employer’s failure to comply with its obligations does not automatically legitimize the employee’s refusal to perform the service.
What should the employer do?
Regarding the transfer from one production unit to another, the law provides that the employer may change the place of work of one or more workers permanently and without duration limits only in the presence of proven technical, organizational and productive reasons. In addition, specific conditions dictated by collective bargaining may provide further indications regarding the conditions for legitimacy of the transfer (limits to certain categories of workers, notice, etc.).
The technical, organizational and productive reasons must exist at the time when the transfer is decided and must be objective (even if, in specific cases, the transfer of the worker is allowed if his conduct, disciplinarily relevant, determines dysfunctions and disorganization: so-called company incompatibility).
Within this perimeter, the employer is free to choose unquestionably.
However, without prejudice to this undisputed principle which in case law, in order for the employer’s decision to be free from criticism, it must necessarily comply with the general principles of fairness and good faith. For example, if the employer can cope with the technical, organizational and productive reasons using different organizational solutions, equal for him, he will be required to prefer the least burdensome for the employee (especially in the case where the employee will communicate and demonstrate the existence of serious family reasons impeding the transfer).
If the transfer is legitimate in light of the above criteria, the worker may not refuse it. In the event of a refusal not motivated by valid reason, if the worker does not take service at the new place of work within the required period, the employer may order dismissal for justified subjective reason (in accordance with the prescribed procedures or after notification of the unjustified absence, where applicable).
In what cases can the worker oppose the transfer imposed by the employer?
In the event that the transfer imposed by the employer appears illegitimate, the employee may oppose it with any written act, even out of court, suitable for making his will known, within 60 days from the date of receipt of the transfer notice (in the following 180 days the worker must file a judicial appeal or communicate his request for attempted conciliation or arbitration).
The case law establishes the criteria according to which, in the event of a transfer that is not adequately justified, the worker’s refusal to take up service at the place of destination is deemed legitimate, which, for example:
- It must be proportionate to the employer’s failure to comply;
- It must not be contrary to good faith;
- It must be accompanied by a serious and tangible willingness to serve at the original location.
Therefore, even in assessing the position assumed by the worker in the face of an illegitimate transfer, a concrete evaluation of the circumstances and a comparative examination of the breaches committed by the employer and the worker must be carried out, also with regard to their respective impact on the synallagmatic balance, on the positions of the parties and on their interests.
The transfer deemed illegitimate will be considered null and void and, in such case, the court will order the reinstatement of the employee in the previous workplace.