Domanda:
Buongiorno, nel 2009 sono stato assunto come categoria protetta. Sono un invalido del lavoro con un grado di invalidità del 45%. Nei prossimi mesi probabile che il mio ufficio chiuda e possa essere trasferito in altra sede. Nel frattempo ho chiesto l’avvicinamento a casa perché esiste un’altra sede distante 3 km dalla mia residenza.
La domanda è questa: essendo una categoria protetta possono mandarmi in una sede più lontana o è mio diritto essere avvicinato a casa? Grazie.
Risposta:
Gentile signore, l’art.33 della legge 104/92 prevede, relativamente alla scelta e al trasferimento della sede di lavoro, alcune particolari agevolazioni per il lavoratore portatore di grave handicap (in possesso della certificazione di portatore di handicap in condizioni di gravità, art. 3, comma 3), riconoscendogli il diritto a scegliere, ove possibile, la sede di lavoro più vicina al proprio domicilio e a non essere trasferito senza il suo consenso ad altra sede.
Detto ciò, potrà dunque godere della suddetta agevolazione solo ed esclusivamente nel caso in cui Lei sia in possesso della certificazione di handicap con connotazione di gravità ai sensi dell’articolo 3, comma 3, della predetta legge 104/92, rilasciata della commissione ASL/INPS preposta all’accertamento. Al fine di ottenere il rilascio della predetta certificazione, dunque, il primo passo da compiere è quello di presentare apposita domanda alla Commissione medica Integrata ASL/INPS che, così come previsto dall’art. 4 , comma 1, della predetta legge, si occupa di accertare la condizione di disabilità grave.
Tuttavia, in tema di trasferimento di sede, si precisa che purtroppo l’ordinamento in materia non pone “obblighi” veri e propri ai datori di lavoro.
Pertanto, il diritto del lavoratore disabile con connotazione di gravità, di scegliere la sede lavorativa più vicina al proprio domicilio e di non essere trasferito ad altra sede senza il suo consenso, non si configura come un diritto assoluto o illimitato perché detto diritto non può essere fatto valere allorquando, alla stregua della regola di un equo bilanciamento tra i diritti, tutti con rilevanza costituzionale, il suo esercizio finisca per ledere in maniera consistente le esigenze economiche, produttive o organizzative del datore di lavoro e per tradursi, soprattutto nei casi in cui si sia in presenza di rapporti di lavoro pubblico, con l’interesse della collettività. Questa al momento è la tendenza interpretativa prevalente anche in sede giurisprudenziale.
Ad ogni modo, nell’ipotesi in cui Lei fosse un dipendente pubblico, Le segnaliamo che molte pubbliche amministrazioni hanno ulteriormente precisato i criteri per fruire di tale agevolazione. Pertanto, è sempre opportuno verificare quanto specificamente previsto dal contratto di lavoro e dai regolamenti di categoria.
Può comunque rivolgersi al Patronato ANMIL, anche attraverso il numero verde 800 180 943, qualora necessitasse di ulteriori informazioni e/o assistenza.
Cordiali saluti.
Inviaci il tuo quesito scrivendo a esperti@anmil.it
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