By Order No. 2739 of 30 January 2024, Corte di Cassazione stated that, in case of suppression of the duties predominantly performed by an employee, before proceeding with dismissal on objective grounds, the employer is required to:
- assess whether, in the context of the whole of the activities carried out, the residual tasks – i.e. the tasks other than those suppressed – have an objective autonomy such that they can continue to be carried out by the employee. This assessment of appropriateness is left to the employer, who, where there are organisational and productive reasons, may decide to redistribute them among the workers in the office,
- comply with the repêchage obligation, i.e. seek any possible alternative measure to dismissal and apply it insofar as possible.
In the case at hand, the employee – who was mainly entrusted with the duties of switchboard operator and, at the same time, with further residual tasks of call sorting – had been dismissed due to the suppression of her duties as switchboard operator caused by the introduction of an automatic phone answering system.
According to the Court, in order for the termination of the employment relationship to be lawful, it is not necessary that all the duties attributed to the employee be suppressed, ‘in the sense of their absolute and definitive elimination (…) given that the residual duties may be differently distributed among the employees in the office’.
However, the Supreme Court specified that before dismissing the employee, the employer is required to:
- assess the possibility of assigning said employee to the performance of the residual duties only, possibly resorting to a part-time employment contract,
- verify that no position is available in the company’s organisational chart in which the employee can be redeployed, even for the performance of duties belonging to a lower classification level but falling within the same legal category.
