Sentenza trasferimento per 104

Dear Director,

Interesting ruling. 

I myself, in defending colleagues who were longing for a mutual transfer, had to advise them to give up changing under the prerogatives of Law 104. A very bad piece of advice, which I would have preferred not to resort to, but one is forced to use this method in order to reach a solution. 

It is often a serious problem to be forced to wait for the justice system's timing; certain tricks, although lengthy, turn out to be faster than going to court, but also cheaper.

That said, I am happy with this ruling. It could represent a milestone as far as transfers are concerned; I have colleagues who have been waiting for a transfer for a long time, like those who aspire to transfer from Rome to Latina, ...but also from Viterbo to Rome and vice versa.

I hope this is a good omen, for a year full of transfers, for the joy of all, including the patients, who will not have serene healthcare professionals. Cordially

Rome, 01.01.2021                                                                                 

Nursing Up Lazio
Laura Rita Santoro

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The impossibility of the right to transfer under art. 3 paragraph 3 Law no. 104 of 1992 must be strictly proven by the Company

Impossibility is something more than uneconomical - the rule says "where possible" not "where convenient" - and implies that the latter results in serious damage or prejudice to the functionality of the entity or company, so it is not enough to claim that the current assignment location is understaffed and the requested one is overstaffed, but it is necessary to claim and prove that without the work performance of the person entitled to the transfer, the current assignment location could no longer operate or would be seriously prejudiced in its ordinary operations and/or that in the location or locations requested by the worker, their performance would be unusable because totally or largely superfluous.

(Dr. Jacopo Grassini - www.dirittosanitario.net)

-Piacenza Court, Labor Section, Judgment, 20-08-2020

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

PIACENZA COURT

labor and social security

The Court, in the person of Judge Filippo Ricci, following written proceedings in place of the hearing set for 5.5.2020, has ruled pursuant to art. 83, paragraph 7, letter h) D.L. no. 18 of 2020 (converted into Law no. 27 of 2020) and 430 c.p.c. the following

JUDGMENT

in the first instance civil case registered under no. r.g. 801/2018 brought by:

T.D. born in P. on (...), tax code (...), residing in M. (A.) and electively domiciled in Piacenza via San Giuliano 19 at the office of lawyer Giuliano Previdi, tax code (...), who represents and defends him

APPLICANT

against

P.I. s.p.a., in the person of the legal representative pro tempore, tax code (...), based in R. and electively domiciled at the Piacenza branch via Sant'Antonino 40, represented and defended by lawyer Antonella Imbastari, tax code (...)

DEFENDANT

Proceedings - Reasons for the decision

The applicant, a postman employed by the defendant, seeks a declaration of his right to a work location within the Municipality (Montoro) of his father's residence, T.M., born 1944, who since February 2018 has been disabled in a situation of severity under art. 3 paragraph 3 Law no. 104 of 1992 as certified by the Medical Commission of Avellino.

He complains of the employer's refusal to the requested location under art. 33, paragraph 5, Law no. 104 of 1992 cited above and essentially asks for confirmation of the anticipatory measure already obtained, pending judgment, with a precautionary order under art. 700 c.p.c. issued on 7.2.2019.

The claim is well-founded.

The applicant documents - also with the counterparty's allegations - all the prerequisites for the claimed right, including cohabitation (same registered residence) with the assisted person, use of leave under art. 33 cited, paragraph 3, that the assisted person is not hospitalized, etc.

Moreover, that the right exists is an uncontested and undisputed circumstance between the parties.

The opposing reasons put forward by P.I., in fact, relate to the fact, on the one hand, that this right is provided for by law "conditionally" ("where possible") and that P., affected by a complex process of territorial reallocation of human resources, currently have no available positions in the province of Avellino, where staff with postman duties is excessive, and instead need to use the applicant's work in the post offices of the province of Piacenza, where such staff is lacking.

As the panel of the Court invested with the appeal against the precautionary order - which confirmed it - did not fail to note, even at the assertion level, the "impossibility" of assigning the applicant to a post office in the province of Avellino is not evident.

Impossibility is something more than uneconomical - the rule says "where possible" not "where convenient" - and implies that the latter results in serious damage or prejudice to the functionality of the entity or company, so it is not enough to claim that the current assignment location is understaffed and the requested one is overstaffed, but it is necessary to claim and prove that without the work performance of the person entitled to the transfer, the current assignment location could no longer operate or would be seriously prejudiced in its ordinary operations and/or that in the location or locations requested by the worker, their performance would be unusable because totally or largely superfluous.

Therefore, the application is upheld as per the operative part. Nothing needs to be ordered to P.I. s.p.a., which, in execution of the precautionary order, has already transferred the applicant.

The costs of the proceedings follow the outcome and include those incurred in the precautionary phase.

P.Q.M.

the labor judge, definitively ruling, ascertains and declares that T.D., for the reasons stated, has the right to be assigned to service at a P.I. s.p.a. location in the Municipality of Montoro or another nearby in the province of Avellino;

declares and orders P.I. s.p.a. to reimburse T.D.'s legal costs, which, including those of the precautionary phase, are set at a total of Euro 6,000.00 for professional fees, plus a flat-rate reimbursement of general expenses at 15%, VAT and CPA as required by law.

So decided in Piacenza, on August 20, 2020.

Filed with the Clerk's Office on August 20, 2020.