Supreme Court: no demotion for nurse performing complementary tasks as Oss

The professional nurse, who performs the typical duties of the technical assistance and social-sanitary worker (Ota and Oss) is not demoted and therefore has no right to compensation, if she does not do so in a prevalent manner with respect to her qualification. The Court of Cassation thus dismissed the appeal against the decision of the Court of Appeal that, contrary to the Court of First Instance, had excluded the demotion and the right to pay differences from 1990, the year in which the plaintiff was assigned to tasks typical of lower contractual categories, to 2013, the year in which the lawsuit began.

The territorial court, although having verified, by hearing the witnesses, that the worker had habitually performed the duties of Oss and Ota, such as 'taking care of the hygiene of patients, changing bed linen and nappies, tidying up patients' rooms - so-called giroletti -, feeding non-self-sufficient patients, the transport of patients to other wards or specialist visits', however, weighed against the appellant's failure to demonstrate that the latter duties took precedence over those reserved for the category in which she was contractually employed. According to the Court of Merit, 'it was not a matter, therefore, of an employee being deprived of the qualifying duties typical of the professionalism acquired and of her contractual classification, but rather of being assigned in parallel and in addition to other tasks, in any case largely instrumental and complementary to them, inasmuch as they pertained to the sphere of patient care'.

Unsuccessfully, the professional challenges the conclusion reached by the Court of Appeal, which did not consider how the duties, which she had performed, did not fall at all within the nursing duties, but rather within those of the Oss who are expressly assigned the basic care of the patient to meet his or herprimary needs: for their own wellbeing and autonomy and the performance of activities aimed at personal hygiene, changing linen, carrying out physiological functions, helping with walking, the correct use of aids, aids and equipment, learning and maintaining correct postures.

For the Supreme Court, however, these are reasons that do not take into account the decision of the District Court, which ascertained the non-prevalence of the inferior duties with respect to nursing duties, which, in any case, appear to have been unquestionably performed by the employee at the same time as the additional duties, considered complementary to the nursing duties proper to the classification, with the consequent non-existence of the contested demotion. Nor does the argument of violation of the code of ethics pass, an issue that cannot be reviewed by the Court of Cassation.