THE REFUSAL TO TRANSFORM THE EMPLOYMENT RELATIONSHIP FROM PART-TIME TO FULL-TIME: A NEW RULING FROM THE SUPREME COURT

In the labor law field, a recent ruling of the Supreme Court, n. 29337/2023 of the 23th October 2023, has shed light on the dynamics of the relationship between employees and employers regarding the refusal by workers to transform their contract from part-time to full-time.

The ruling clearly establishes that a worker's refusal to accept the transformation from a part-time contract to a full-time contract does not automatically allow the employer to proceed with the dismissal.

The employer, in fact, will therefore be able to proceed with dismissal only in the presence of the following fundamental conditions:

1) the presence of actual organizational and economic needs that justify the need to change the contract (from part-time to full-time)

2) the proposal made to the employee to change working hours and the worker's refusal

3) the existence of a causal link between the need to vary (increase or decrease) working hours and dismissal.

In the specific case dealt with by the Supreme Court, a company saw a considerable increase in customers, making it necessary to resort to full-time services by an employee who previously worked part-time. However, faced with the employee's refusal to accept this change, the company hired a new full-time employee and subsequently fired the part-time employee after a training period for the new hire.

The employee contested the dismissal, claiming that it was a retaliatory measure in response to her refusal to modify the contract, contesting the termination considering it without a justified objective reason.

The judge of first instance had rejected the worker's requests, while, on appeal, the nullity of the withdrawal was declared with the employer being condemned to reinstatement in the workplace and to the payment of accrued wages, as based on art. 8 Legislative Decree no. 81/2015, the worker's refusal to change his working hours did not constitute a justified reason for dismissal. The Court of second istance of Milan had considered the prospect of a corporate reorganization implemented through the full-time hiring of a new accountant to deal with the increase in work activity to be specious, stating that in any case the impossibility of the company to implement measures other than dismissal, such as the division of the client package between the two accountants.

However, the  Supreme Court in sentence no. 29337/2023 established that: “as correctly indicated by the Territorial Court, the fundamental rule to take into consideration, in relation to the type of employee's employment relationship, is Legislative Decree no. 81 of 2015, art 8 paragraph 1 applicable ratione temporis, according to which the worker's refusal to transform his full-time employment relationship into a part-time employment relationship, or vice versa, does not constitute a justified reason for dismissal.

Well, it was clarified, in the context of legitimacy, that the provision of this provision does not preclude the right to withdraw for objective reasons in the event of refusal of part-time employment (or vice versa full-time employment), but involves a remodulation of the justified objective reason and of the burden of proof placed on the employer.

In this case, for the purposes of the justified objective reason, actual economic and organizational needs must exist or be demonstrated by the employer such as not to allow the maintenance of the full-time job (or part-time as in the case in question), but only with the different time requested; the proposal to the employee or employees to change the employment relationship to part-time and its refusal; the existence of a causal link between the need to reduce (or increase) working hours and the dismissal (Cass. No. 21875/2015).

The refusal of the transformation of the part-time employment relationship, as articulated, therefore becomes a component of the broader burden of proof of the employer which includes the economic reasons from which the impossibility of continuing to use the part-time service and the offer of the full time refused (still in terms of Cass. n. 12244/2023)”.

In conclusion, with the ruling, here in question, the Supreme Court offers further clarification on labor law matters and, more specifically, on the position of the worker who refuses to switch the employment relationship from part-time to full-time, underlining that in order for the nullity of the dismissal, the employer's retaliatory intent is necessary which must be proven by the employee.

author: Dott. Federico Benedetti