Italy: Employee’s Relocation to a Different Workplace Following a Reinstatement Order is Unlawful

The case concerns an employee who, after declaring his dismissal as unlawful and obtaining an order for reinstatement, was transferred by the employer to a different workplace.

The Court of Appeal, confirming the judgement of the first instance, had ordered the company to relocate the reinstated employee to the original workplace, allowing the employer to transfer him to a different workplace only subsequently and upon the occurrence of not only the “proven technical, organisational, and productive reasons” referred to in Article 2103 of the Italian Civil Code but also the “additional proof of the inevitability of the relocation due to the certain unusability of the employee” at the original workplace.

The employer challenged the decision before the Supreme Court, complaining that the Court of Appeal had allegedly erred, on the one hand, “in not recognising that following an illegitimate dismissal, the employee can be transferred regardless of any reinstatement.” On the other hand, in not considering that “the reasons to be demonstrated are only those that support any ordinary hypothesis of transfer, while the existence of a reason relating to the impossibility of reinstating the employee at the original workplace is irrelevant.”

The Supreme Court, with the said judgement no. 18892, clarified preliminarily that the relocation following a dismissal declared unlawful, with the consequent order for reinstatement, is quite different from “any ordinary hypothesis of relocation” as invoked by the employer. In the latter case, it is necessary and sufficient that only the technical, organisational, and productive reasons required by Article 2103 of the Civil Code are proven, while the order for reinstatement introduces an “additional limit” to that provided by the aforementioned Article 2103.

Specifically, the Supreme Court stated that, without prejudice to the necessary prior relocation of the reinstated employee to the last occupied workplace, the subsequent possible transfer to another workplace cannot disregard the proof of the employee’s unusability at the original workplace.

By introducing this additional limit and the related burden of proof, the Court, however, makes the situation particularly onerous, even contradicting its own previous case law. Until now, indeed, the judge’s control over the transfer of a reinstated employee did not have to present the characteristics of inevitability (similar to that of dismissal for the suppression of the job position), but had to verify only the correspondence between the company measure and the typical purposes of the business.

Key Action Points for Human Resources and In-House Counsel

Practical Points

• After a reinstatement order following a dismissal declared unlawful, the employer has to relocate the reinstated employee to the workplace to which he/she was employed at the time of the unlawful dismissal;
• The employer who wants to transfer the reinstated employee to a different workplace must prove not only the existence of the “proven technical, organisational, and productive reasons” referred to in Article 2103 of the Italian Civil Code but also the “inevitability of the relocation due to the certain unusability of the employee” at the original workplace.