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The transfer due to environmental incompatibility is a well-known tool in the school sector that has given rise to several disputes over the years.
The main reference standards are Articles 468 and 469 of Legislative Decree 297 of 1994.
When there are urgent reasons, the transfer of position may also be arranged during the school year due to a confirmed situation of incompatibility of permanence in the school or headquarters.
If there are reasons of special urgency, meanwhile, only the school director can order the suspension of the service, after consultation with the teachers’ college, in the case of teaching and educational staff, or by the director in charge of the regional office from school. in the case of a school principal.
If the reasons for urgency are due to the existence of serious and proven factors of disturbance of the school environment and prejudice of the relationship between the school institution and the families of the students, as a result of specific behaviors of one or more teachers, harmful to the dignity of the people who work in the school environment, of the students and of the school institution, in such a way that it is incompatible with the educational function, the school director may adopt the suspension measure without consulting the faculty board.
While the transfer of office of the teaching and teaching staff, determined by a proven situation of incompatibility of permanence in the school or headquarters, is ordered by the director in charge of the regional office of the school, in the opinion of the competent disciplinary council of the provincial school council . for kindergarten, primary and high school teachers, or at the discretion of the corresponding procedural council of the National Council of Public Education for teachers of high school and arts education institutions and schools.
The aforementioned opinions must be issued within the ninety days following the receipt of the request, extendable in thirty days to carry out the subsequent and specific previous procedures that are necessary. After this period, the administration may proceed to adopt the provision.
The Cassation with judgment of 04/05/2017, n. 10833 found that the transfer of teachers due to environmental incompatibility, “where collective bargaining has not provided otherwise and, for what is not provided, by the general principles established in art. 2103 of the Italian Civil Code, has a precautionary and non-disciplinary nature, so the procedure established in articles 503 and 504 of the same decree for disciplinary transfers and, in the absence of specific provisions, the term for the adoption of the relative provision is the reasonable beyond which the needs of its urgency would cease, while the right of defense is satisfied by the possibility for the interested party to send his observations to the manager before the issuance of the deed “.
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