DLP Insights

Probation clause: referring to collective bargaining is not enough

Categories: DLP Insights, Case Law | Tag: Probation clause, collective bargaining

02 Mar 2022

With its ruling no. 1099 of 14 January 2022, the Court of Cassation stated that specifying duties covered by the probation clause may refer to the collective agreement declarations if the reference is specific enough.

Facts of the case

The Supreme Court’s ruling stems from a Court of Appeal of Trento ruling, which upheld a court of first instance ruling upholding an appeal lodged by a worker to nullify a probation clause in her employment contract and consequent termination due to her failure to pass probation. The woman was hired as a “worker not involved in the production cycle” and classified as “level I 3” of the national collective labour agreement for the rubber and plastic sector.

According to the Court of Appeal, the reference to the NCLA did not give specific instructions on the duties assigned to the worker since the collective provision mentioned among the tasks attributable to that level “work similar to cleaning work” without further specification or example.

In the local Court’s opinion, a further element of uncertainty for the tasks required and on which the probation was based, was the clause attached to the individual contract according to which “tasks and objectives will be specified later and will be an integral part of the contract.” The Court of Appeal said that this clause was not, as the company argued, within the scope of the employer’s managerial power, which was based on assigning tasks.

The company appealed to the Court of Cassation against the Court of Appeal’s ruling.

The Supreme Court of Cassation’s ruling

The Court of Cassation stated that the probation clause reason must be identified in the protection of the common interest of the two employment relationship parties, “as it is intended to implement an experiment through which the employer and worker can verify the mutual convenience of the contract. The employer ascertains the worker’s capabilities, and the worker assesses the extent of the service required and the relationship conditions.”

This requirement to specify the duties covered by the probation clause is functional to the probationary period’s proper conduct and assessing its outcome. Therefore, it must be carried out based on the performance and assigned duties as identified in the contract.”

According to the Court, it is in theory possible to supplement the probation clause by referring to the NCLA qualification and classification level, but “the reference must be sufficiently specific and detailed. For example, if a category of a given level includes several profiles, the individual profile must be specified, while it would be generic to specify only the category.” In this case, the reference to the NCLA could not provide a specific description of the duties on which the woman’s probation should have been based. That is because the collective classification relating to the professional position in which she was classified mentioned that, in addition to cleaning, the tasks that she could be assigned included “similar” work.  In the Court’s view, this expression “indefinitely broadened the range of the tasks which may be assigned to the level in question.”

The Court of Cassation dismissed the company’s appeal and ordered it to reimburse the proceeding’s costs.

Other related insights:

More insights