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With Judgement no. 12040 dated May 6, 2021, the Supreme Court ruled once again on the issue relating to the selective criteria (i.e., family burdens, seniority of service, technical-productive and organizational needs) to which the employer must refer by law to identify the employees to be dismissed in the event of collective dismissals.
Preliminarily, the Court re-stated the consolidated principle according to which the closure of the business activity is left to the choice of the employer which constitutes a non-questionable exercise of the freedom of enterprise guaranteed by Article 41 of the Italian Constitution as well as the principle according to which the collective dismissal procedure has the sole purpose of allowing the unions to control the effectiveness of the employer’s choice.
Methods of applying the selective criteria
That said, the Supreme Court stated that, if the restructuring project refers only to a single department or business unit, the employer can legitimately delimit the group of employees in relation to which the selection criteria apply. This is because the technical-productive and organizational needs can constitute the exclusive criterion in determining the number of employees to be dismissed. To this end, however, in the notice of opening the collective dismissal procedure, the employer must indicate (i) the reasons limiting the dismissals to the employees of the department or business unit in question and (ii) the reasons why the employer does not consider feasible the transfer of the concerned employees to other departments or business units, so as to allow the unions to verify the actual need for the planned collective dismissals. In this regard, it is worth noting that in principle, even if a collective dismissal only concerns a specific department or business unit, the selective criteria to be applied to identify the redundant employees must be applied to all employees of the employer who initiates the collective dismissal procedure, and not only to employees of that department or business unit.
In this perspective, the Supreme Court has again confirmed that the limitation of the number of employees only to the employees of a department or business unit is lawful if the employees assigned to that department or business unit are provided with specific professional skills, which are not fungible with regard to other employees of others departments or business units.
Agreement with the unions on selection criteria
Finally, the Supreme Court affirmed that the function of an agreement with the unions (reached upon completion of the consultation procedure with the unions) regarding the negotiation of the criteria for choosing the employees to be dismissed must respect not only the principle of non-discrimination , but also the principle of rationality, so that the agreed criteria must have characteristics of objectivity and generality, as well as consistency with the aim of the collective dismissal procedure.
Avv. Guido Brocchieri
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