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ARAN shares on its channels an interesting order from the Labor Court of Grosseto, number 203 of 2020, which intervenes on the issue of agile work and office vacations. The case in question concerns the private sector, but in reality the regulatory framework also affects the PA and partly also affects the schools. Take, for example, the issue of agile work, which today exists substantially for a part of the school staff. 04/23/2020) or the problem of holidays.
The fact
With appeal in accordance with art. 700 cpc an employee with a fixed-term contract complained that the employer had illegally refused to assign him to so-called work. agile even though all the colleagues in his department had already been. He pointed out that, in the current period of health crisis linked to the known problems of the spread of Covid19, he would have had the right to be preferred in the transfer to the agile mode of work due to the provision referred to in art. 39, co. 2, Legislative Decree 18/2020 as a carrier of a pathology from which the recognition of a civil disability with a reduction of their work capacity was derived. Instead, the company had limited itself to suggesting the use of “early” vacations.
Denial of agile work is illegitimate if organizational impossibility is not proven
“The defendant confides the reasons for the alleged impossibility of meeting the employee’s request for assignment to agile work to vague, although implausible, organizational difficulties, and the consequent costs involved in providing means for remote work on the PC of the Plaintiff’s company would have involved; Reasons, linked to costs and difficulties, which, for an important public limited company that operates in the electricity and gas supply sector in the national territory, seem pretext and incomprehensible given the measure already implemented in favor of the other employees in the same department as the applicant and, reasonably, the limited interventions necessary for the employee to work remotely. “
Agile work is recommended and in the AP it is ordinary activity
“For obvious reasons, this way of working cannot, and cannot, be imposed in a general and indiscriminate way; however, the same has been repeatedly and energetically recommended and even considered the ordinary procedure for the performance of service in the Palestinian Authority (see art. 87 of Legislative Decree 18/2020) ”.
The worker’s right to leave must be respected
“It is not disputed, and it is also documented, that the applicant is in a situation of reduced work capacity and therefore has the title of priority. which not only has no legal basis, but is already outlined in the abstract, contrary to the general principle according to which (accumulated) vacations serve to annually compensate the work done with rest periods, allowing the worker to recover his psycho-physical and the care of their emotional and social relationships, and therefore matures in proportion to the duration of work performance. As such, the enjoyment of (id est, the right to) vacation it cannot be subordinated in its existence and annual recurrence to the needs of the company, except within the limits of art. 2109, co. 2, civil code and in accordance with the provisions of individual collective agreements, taking into account the constitutional principles entrusted in art. 36 of the card. 6.5 Therefore, it must be concluded that, in the specific context outlined above, the refusal to admit the applicant to agile work and the related perspective of the necessary choice between the unpaid suspension of the relationship and the forced enjoyment of a license is still not accumulated are illegal. “
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