The limits on the right to modify working hours provided for part-timers do not apply to full-time employees. In such a case, the right may be limited only by agreements.
Court of Cassation, Order No. 31349 of 03 November 2021.
In the case in question, an employee who was working a so-called “split” schedule (from 8 a.m. to 12.25 p.m. and from 2 p.m. to 5.30 p.m.) due to a number of chronic illnesses from which she suffered, was assigned to a different department. This new assignment led to a change in her working hours, since she had to work continuously in that department (from 2 p.m. to 10 p.m.).
The employee therefore took legal action requesting assignment to the duties previously carried out with application of the previous working hours.
The Court of Appeal upheld the employee’s request for violation of the principles of good faith and fairness – as provided for in Paragraph 1175 and 1375 of the Italian Civil Code – on the grounds that “at the time of the change in working hours, the organizational needs alleged in the complaint did not exist, since the discontinuation of the day jobs to which the plaintiff was assigned had not yet been implemented or was imminent; nor did the fact that the production line had been discontinued in the course of the proceedings affect this finding, given that the claim was essentially for the preservation of the working time previously observed”.
The employer filed a Cassation petition against this decision.
The Court of Cassation upheld the petition and set aside the decision of the Court of Appeal. The Supreme Court first of all recalls that “the expression working time has a multi-directional meaning in that it is indicative of both the amount of work due and the distribution of that work over a given period of time, also constituting a parameter for the remuneration; on the other hand, it fulfills the primary function of delimiting the maximum amount of work that may be required of the worker”.
Thus, “in the matter in question, the directive power of the employer may be exercised in compliance with the legal limits on the duration of work, as well as those that condition the possibility of determining the distribution of working time; it should also be noted that the quantitative profile of working time is inherent in the subject matter of the contract and cannot be modified unilaterally by the employer, who is instead granted the power of distribution, subject to legal and contractual limits”.
In relation to the present case, the Court of Cassation notes that “the contract between the parties was a full-time contract, in relation to which any possible extension of the limits placed on the ius variandi in part-time contracts must be disregarded. In part-time contracts, the scheduling of free time is essential and justifies the employer’s inability to modify the timetable in order to ensure the performance of further work or a different use of time (see Court of Cassation, 16 April 1993, no. 4507)”.
This regulatory paradigm, continues the order in question, “is not applicable to the full-time employment contract, in which an equal protection of the employee’s free time would result in the denial of the entrepreneur’s right to organize his working activity; in such a case the right may be limited only in dependence of agreements that bind him or condition him to particular procedures, elements that in this case, as said so far, do not exist”.
In this perspective, the Supreme Court concludes, the conclusions reached by the Court of Appeal in relation to the ascertainment of the violation of the principles of fairness and good faith because the divestiture of the work to which the applicant was assigned was not in progress or imminent, do not appear to be acceptable, given the incontrovertible reality of the choice of relocation of the work, the lack of evidence of any situation of discrimination against the employee or infringement of her rights under specific contractual agreements.
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