Part-time employee: Can the employer change the working hours? Is it lawful to terminate the employment if the employee does not accept the new working hours?
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“The refusal of the worker to agree to a change in working hours does not constitute justified grounds for dismissal… the organisational needs underlying the request for a change in hours cannot, in themselves, be considered as an exclusive and self-sufficient objective reason for dismissal, because this would mean effectively cancelling the legal protection that allows the worker to legitimately refuse the employer’s proposal to change the working hours, a refusal that cannot – in open contradiction of the regulations – become an automatic basis for dismissal.”
Stated the Court of Cassation in judgment no. 30093 of October 30, 2023, regarding the case of a part-time worker who had contested the dismissal served to her by the employer company for justified objective reasons following the refusal to accept the employer’s proposal to change the placement of working hours.
To understand the logical-legal process that led the judges to the above-mentioned principle, it is necessary to outline beforehand the salient features of the discipline provided in this area.
The part-time contract is a subordinate employment contract in which the worker is employed for a number of hours not exceeding 40. Therefore, it involves reduced hours, for which the worker enjoys the same guarantees and rights as full-time employees, in proportion to the amount of work performed.
The contract specifies the working hours precisely and punctually, referring to the day, week, month, and year.
During the employment relationship, the employer cannot arbitrarily change the temporal placement of the work performance, except in cases where flexible clauses are included in the contract, i.e., an agreement between the parties allowing the company to increase the worker’s working hours or change them.
If the employer wishes to apply the so-called flexible clauses to change the temporal placement of the work performance, they must notify the worker with at least two days’ notice, and the worker must give their written consent.
- But what happens if the employer unilaterally proceeds to change the part-time hours or their placement within the day without a flexible clause?
- Can the refusal to accept the change in working hours by the worker be a ground for dismissal?
According to the highest courts, in the event of a refusal of the employer’s proposal to change the placement of part-time hours, the employee can only be legitimately dismissed if the termination was not served due to the denial, but because of the impossibility of using the performance with the previous hourly modalities for actual economic reasons demonstrated by the employer. Therefore, the employer must prove not only the effectiveness of the reasons given for the change in hours but also the impossibility of using the performance otherwise (with different hourly modalities), as a constitutive element of the justified objective reason.
Therefore, the employer can change the worker’s temporal placement only if the latter gives written consent. In case of lack of consent, the worker cannot be dismissed. Instead, the employer may proceed with dismissal for justified objective reasons only if it proves that there are no further employment or different hourly solutions within which to place the work performance as alternative routes to dismissal.
In the judgment, the Court of Cassation demonstrates a balancing of interests: on the one hand, the pronouncement of the judges ensures legal protection that attributes to the worker the right to oppose a legitimate refusal to the employer’s proposal – a refusal that cannot simply constitute the reason and basis for dismissal – on the other hand, it saves the equally legitimate right of the employer to terminate the employment when the refusal to the transformation proposal conflicts with organizational reasons.
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