Despite the failure to challenge previous agreements and the loss of the worker’s ability to challenge these agreements, exceeding the maximum limits permitted for fixed-term contracts can render the employment relationship invalid. This was established by the Italian Court of Cassation in judgment no. 15226/2023 of 30 May 2023, based on a well-established interpretation and adopting a restrictive reading of the rules governing fixed-term work.
The facts of the case
The ruling of the Italian Court of Cassation originates from a judgment of the Court of Appeal of Brescia (no. 127 of 2017) which rejected a worker’s appeal concerning a fixed-term contract and numerous previous relationships with the same employer.
In the case, the worker had complied with the legal time-limit of 60 days from the end of the relationship to challenge only the last agreed fixed-term contract. The Court of Appeal of Brescia, considering this fact, dismissed the appeal, rejecting all connected requests.
The worker lodged an appeal with the Italian Court of Cassation against the judgment of the Brescia Court of Appeal.
The decision of the Italian Court of Cassation
The Italian Court of Cassation partially reviewed the aforementioned decision of the Court of Appeal. On the one hand, it reiterated that ‘on the subject of the succession of fixed-term agency employment contracts, the out-of-court appeal of the last contract in a series of contracts does not extend to the preceding contracts, even where a period of less than 60 days has elapsed between one contract and the next for the purposes of challenging the contract’. Therefore, the Court confirmed that the challenge in relation to the last contract does not extend to the preceding ones, even if less time has elapsed between one contract and the other than is necessary to bring the challenge.
After establishing this principle, the Italian Court of Cassation analysed the worker’s ability to claim abusive use of fixed-term contracts by the employer due to their excessive and repeated use, even if the limitation period had expired. The Court started from the recent interpretation of EU law by the European Court of Justice (judgment 14 October 2020 in case no. C-681/18, relating to the parallel institution of temporary agency work), according to which the Member States must adopt measures to preserve the temporary nature of temporary agency work, to avoid circumvention of the directive on this type of work.
In the light of this principle, the judge is called to evaluate the effect that the recurrence of fixed-term contracts can have in circumventing the EU rules which establish limits on the duration and quantity of fixed-term contracts. The Court held that the historical existence of previous relationships can and must be taken into consideration to assess whether the reasons for resorting to fixed-term work are actually of a temporary nature and that this assessment remains valid even if the limitation period for the worker to challenge those contracts has expired.
In other words, according to the Italian Court of Cassation, the expiry of the limitation period prevents the worker from taking direct action with respect to the previous unchallenged contracts, but the judge can consider their existence as historical precedents that may be used to assess whether their repetition has been abusive and whether the maximum duration established by law (36 months) has been exceeded.
In the light of this judgment, the principle emerges according to which, and in relation to successive fixed-term contracts, an appeal directed only against the last contract of a series, when the party is time-barred from appealing previous contracts, does not exclude the fact that the judge must take into account, in assessing the lawfulness of the contract challenged within the limitation period, the factual information on the existence of previous fixed-term relationships, to verify whether the relationship, considered as a whole, can be considered actually temporary or whether there has been abusive repetition, to be ascertained according to the rulings in the ECJ judgment of 14 October 2020, case C-681/18.
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