Gaseous After Food Poisoning

reinstatement of the worker in the workplace

November 23 2010 Supreme Court Judgement No 23766.

The problems related to reinstatement of the worker's work case involves two distinct

• The first concerns the case following the declaration of illegality of the dismissal with the court, with the ruling by which he states ineffective, void or cancel the dismissal, under the effective protection provided by art. 18 of the Statute of Workers, shall order the employer to reinstate the worker in the workplace;
• The second concerns the case where, following the revocation of a term applied to the employment contract, there is conversion of the contract term in a contract of indefinite duration.

Both are addressed and resolved the problems exposed by the case law in that the obligation to relocate the employee within the company originating in the place and duties.

In particular, the Court of Cassation No 23 766 of 23 November 2010, in relation to the second case detected, succeeds in asserting the principle of law that "the order of reinstatement issued by the court to sanction a dismissal requires that the employee is in any case put back in place and saves the original tasks ability of employers to have a subsequent transfer to another measure, the production unit where it fulfills the criteria of technical, organizational and productive. "

The ruling goes on to establish that the transfer of the worker in this circumstance, is invalid when it is performed outside of these conditions, a failure to integrate contract and this justifies the refusal to hire the employee serving in the place other than where it is intended.

fact, it is necessary to consider that the relocation of the employee may be reinstated only arise after the reinstatement of the worker in the same workplace from which he had been dismissed.

This principle of law is extended, with the ruling Cass. August 9, 2002, No 12123, also in the first case where it is applied art. 18 St. Lav. that expressly states, through the application of real protection, reinstatement of the worker in the "place work ", to be understood in that sense the" least busy "by the worker.

It is necessary at this point do the basic considerations: the two cases are considered different, since Article 18 St. Lav. does not apply to the invalidity of the term applied to a contract which then converts to an indefinite period with the forecast, additional obligations to reinstatement of the worker's work.

In addition, a thorough evaluation of the application of the principle of law, above, applies to cases where the art. 18 and not a shared success in this direction.

E 'need to explain, before moving on to a discussion of the reasons that support this approach of disapproval, two basic premises:

- legitimacy of the courts to prohibit the exercise of the jus variandi employer at the time of restoration of employment, thus affirm the legitimacy of the said power only after his return in the same job, and this obviously in the presence of requirements of Article. 2103 cc and that her duties were similar and the proof of technical, organizational and productive.

- the exercise of jus variandi is then allowed in cases of "proved impossible due to lack of jobs involving the completion of last job or work of equal value to readmit the worker reinstated in the previous headquarters, looming on the employer the burden of proving such circumstances "(Cass. n. 12123/2002).

The Court states that, where provisions for transfer by the employer at the time of reinstatement, the employee is entitled to refuse such a change of job, even equivalent, or be registered under the exception of non-compliance of the employer in art. 1460 cc and by virtue of the nullity of the employer.

Following the approach at this point raised by the judges of legitimacy we would be facing a worker who is "special" because, unlike all other workers, which, inter alia, the sentence re the report says it treats, can not be moved to home or work of equal value in spite of employers' legitimate needs.

In addition, another inconsistency: to prohibit the exercise of jus variandi at restore time employment is permitted "after the reinstatement of the worker in the same workplace from which he had been dismissed" without But to clarify what is meant by "later", or when the jus variandi may be exercised by the employer while being in the presence of clear employers' needs.

If these questions there is the possibility of giving an answer can only be derived to rebut the argument of case law which could be based only on the need to protect the dignity of the worker, who was unlawfully dismissed, is entitled to, at least initially, reinserted in the same work unit from which he was expelled.

If the interpretation above it should be valid, then the refusal of the worker to change job and / or transfer imposed by the employer in the validity of Article. 2103 cc, and then disciplinary action would be unlawful.

In light of this it is possible that the uniform interpretation of the two cases, by the Supreme Court, would result in an unreasonable disparity between the employee reinstated and other workers associated with compression of the organizational power of the employer fully at odds with the protection of Article. 41 of the Constitution.

However, since the jurisprudence to date is critical, state, pacific, you can not help but advise employers an attitude so-called "prudent" in the exercise of jus variandi against worker whose employment has been restored recently, or exercise that power after at least one formal reassignment of the employee the place previously occupied.