Repêchage obligation extended to vacant positions in the future

The employer, in fulfilling the duty of repêchage, must also take into account job positions which, although still occupied at the time of dismissal, will become available within a time frame close to the termination.

In its decision no. 12132 of May 8, 2023, the Supreme Court extended the applicability of the repêchage obligation to be met before an employee can be lawfully dismissed for objective justification.

In general, the duty of repêchage consists of the employer's obligation, before proceeding with a dismissal, to investigate all possible relocations within the company of the workers who have been made redundant or become unsuitable for the duties assigned to them.

Repêchage is, therefore, closely related to the objective justified reason for dismissal, which, under Article 3 of Law no. 604/1966, involves dismissal due to "reasons related to the production, the organisation of work and the regular operation thereof."

The obligation of repêchage meets the limit of reasonableness provided by case law, i.e., fulfilling this obligation should not entail significant organisational changes, staff expansions, or structural innovations not intended by the entrepreneur.

However, the decision under review has extended the time frame within which the employer must make the assessment above. The Court affirmed that, in assessing the employees' re-deployability before dismissing them, the employer must also consider positions that, although still filled, will become "available in a time frame close to the date on which the termination is served.".

In the case examined by the Supreme Court, indeed, at the time of the claimant's dismissal, the employer was aware that two other employees, with fungible duties compared to those performed by the dismissed employee, had resigned and were serving their contractual notice period. The Court, therefore, found that the repêchage obligation was not fulfilled considering the worker's possible redeployment to precisely one of these positions, which, although not vacant at the time of the dismissal, would have become vacant shortly after the termination date.