Court of Cassation Order 8 July 2021 no. 19522
A demotion agreement which, for the sole purpose of avoiding dismissal, assigns to the employee lesser duties and lower salary, is valid because of the employee’s prevailing interest in retaining his job rather than exercising his rights under Art. 2103 of the Civil Code, provided that the employee gives consent and that the conditions which would have justified dismissal in the absence of the agreement actually exist.
This is the principle upheld by the Court of Cassation with order no. 19522 of 8 July 2021.
In the case under discussion, the Court of Cassation notes that “the territorial court has in fact ascertained the existence of such demotion agreement between the parties in the context of a corporate economic crisis involving the need to reduce staff”.
The order also rejects the incidental appeal brought by the company, upholding the judgement of the court of merit, where it found that there was evidence of demotion, with total inactivity of the employee, in a period of time prior to the demotion agreement, with the resulting right of the employee to damages in relation to that period.
On this point, however, and in relation to the payment of damages for demotion, the Supreme Court rejected the employee’s further claim for phycological damage, as lacking adequate proof. On this point, the Supreme Court states: “With regard to professional demotion, non-pecuniary damages are recoverable whenever there is a serious violation of the employee’s rights, which are subject to constitutional protection, to be ascertained on the basis of the persistence of the damaging conduct, the duration and reiteration of the situations of professional and personal distress, and the employer’s inertia with respect to the employee’s requests, even without a specific intention to demote him or debase his tasks (Court of Cassation, S. U. 22 February 2010, no. 4063; Court of Cassation, 20 April 2018, no. 9901)”.
And so “the burden of proof is on the employee, who, however, does not necessarily have to provide testimony, as he may also allege serious and precise circumstantial evidence, such as, for example, the quality and quantity of the work carried out, the nature and type of professionalism involved, the duration of the demotion or the different and new job position assumed after the demotion (Court of Cassation, 15 October 2018, no. 25743; Court of Cassation, 3 January 2019, no. 21; Court of Cassation, 2 October 2019, no. 24585)”.
Evidence which, according to the order under review, was not offered by the employee.