The Court of Cassation, with decision no. 6793/2018, has set forth with regard to the subjective scope of application of Article 2103 of the Civil Code, affirming the worker’s right to higher-up professional qualification, whenever the performance of higher-up tasks, in place of an absent worker, takes place due to an organizational choice of the employer.

The logical-legal proceeding aimed at recognizing the professional status of a salaried employee - according to the consolidated orientation of case-law of the Supreme Court - develops in three successive phases, consisting in the assessment in concrete of the activities carried out, in the identification of the pay grade provided for by the Collective Labor Agreement and in the comparison between the results of the first with those of the second. (Cass. Civ. no. 6174/2016)

Well, in this case, the Court of Cassation, has considered that - also in the light of the evidentiary facts - the tasks performed by the worker, as characterized by operational autonomy and extensive functions of coordination and control, were typical of profiles such as cashier and executive assistant, both included in the second level of the Collective Labor Agreement - Trade. To this end, it does not prevent the fact that these were vicarious tasks, given that - following a stable organizational choice of the employer - these last were prevalent in terms of quality, quantity and time, persisting on the absent worker only the formal ownership of the tasks proper to the relative qualification. In this case, the evidentiary facts, have highlighted the permanent character of the substitution, given that the worker has exercised - for about two years - tasks globally ascribable to the second level of the contractual framework of the Collective Labor Agreement - Trade.

Having said that, the provision introduced by Article 3 of Legislative Decree no. 81/2015, has profoundly modified the requirements provided for the worker’s promotion in case of assignment of higher-up tasks.

The new Article 2103, paragraph 7, c.c. provides that, in case of assignment to higher-up tasks, the worker has the right to treatment corresponding to the activity carried out and the assignment becomes final, unless the worker wishes otherwise, if the same has not taken place for replacement reasons of another worker on duty, after the period set by the Collective Labor Agreement or, failing that, after six continuous months.

The new Article 2103 c.c. subordinates the definitiveness of the worker’s promotion to three conditions: a) the elapsed of the term set by the collective labor agreement or, in absence, by law; b) the absence of replacement reasons of another worker on duty; c) the consent of the worker.

Ultimately, the legislator with the aforementioned provision, has restricted the operational scope of the worker’s right to automatic promotion, excluding it to all the cases in which the assignment take place for replacement reasons of another worker on duty. In this way, it is excluded that the replacement of an employee on duty, whatever the reason of the absence, may root the worker’s right to the stabilization of the higher-up professional qualification.

The Court of Cassation, with decision no. 6793/2018, has therefore applied the provisions contained in the previous text of Article 2103 c.c. (“absent worker with right to conservation of working place”, meaning the employee absent for any of the reasons provided for under Articles 2110 and 2111 of the Civil Code), recognizing the worker’s right to the higher-up professional qualification, although the higher position was not vacant, but belonged to a worker who was temporarily absent due to an organizational choice of the employer.