Carrying out different tasks during the probation period: in the case of withdrawal, the reintegration protection does not apply

The Labour Division of the Supreme Court of Cassation, with ruling no. 31159 published on 3 December 2018, stated that when carrying out different tasks from those established in the probation period, dismissal of the employee due to failure to successfully pass the probation period, whenever unlawful, does not lead to the reintegration but to the more limited remedy of reimbursement of damages calculated on the basis of the damage suffered from the probation period having remained unfulfilled.

The Facts

An employee dismissed by a Company operating in the environmental services field for failing to successfully pass the probation period, brought to court the dismissal order filed against him. Reversing the judgement of first instance, the Court of Appeals having territorial jurisdiction, interpreting the employment agreement to which the probation period was attached, also in light of the collective agreement applicable to the sector, verified that during the probation period the employee had been assigned to different tasks from those agreed, thus deeming the test unfulfilled. Thus, in the opinion of the district Court, the probation agreement had been breached, and consequently deemed effectively “established an open-term employment relationship not subjected to temporary withdrawal” with consequent application of article 18, Law 300/1970 in the version in force at the time. Against said ruling, the Company filed an appeal to the Court of Cassation.

Reference Regulations

The probation period is governed by article 2096 of the Civil Code, according to which, in the second paragraph, it is stated that the employer and the employee are “respectively obliged to agree and to perform the test that represents the probation agreement”. The same article, on the third paragraph specifies that “during the probation period, each party may withdraw from the agreement, without obligation of advance notice or indemnity, without prejudice to that probation period not having been established for the minimum time necessary”, to then end with paragraph 4 stating that “having completed the probation period, the hiring becomes permanent”.

The governing of the matter under review was integrated with article 10 of Law 604/1966 that established the applicability of the limitations for dismissal of employees under probation period whose hiring becomes permanent and, however, after 6 months from the start of the employment relationship.

The ruling of the Court of Cassation

The Supreme Court of Cassation in charge of the case, in explaining its ruling, kept well distinct the possibility of a withdrawal under probation ordered as a consequence of a void probation agreement and, instead, the one in which the withdrawal is ordered as a consequence of a valid probation agreement, but without the effective appointment of the employee to the tasks subject matter of the probation.

In detail, the Court, referring to its previous case law rulings (among which, Cassation ruling no. 8934 dated 2015; Cassation ruling no. 17767 dated 2009; and Cassation ruling no. 15960 dated 2005), has

–       first of all, stated once again that “the withdrawal of the employer during the probation period is at its discretion and waives the obligation of proving the reason for it, differently from what happens in the dismissal subject to law no. 604 dated 1966 (among many, Cassation ruling no. 21586 dated 2008)” and

–       furthermore that “exercising the power of withdrawal must be consistent with the reason of the probation agreement to be identified in the protection of the common interest of the two parties in the employment relationship, since it is aimed at carrying out a test through which both the employer and the employee may verify the mutual convenience of the agreement, the former verifying the skills of the employee and the latter, in turn, assessing the magnitude of the service requested and the conditions for the implementation of the relationship”.

Thus, according to the Court of Cassation, the probation cannot fail and there cannot be a valid withdrawal “whenever the methods of the test are not adequate to verify the job skills of the employee under probation. This applies in all those withdrawal cases where the period during which the employee is subjected to the test is too short (Cassation ruling no. 2228 dated 1999; Cassation ruling no. 2631 dated 1996) or – for what is specifically applicable in this case – whenever the employee carries out tasks that are different from those for which the probation period had been agreed.”

In these cases, according to the Court having jurisdiction, the deriving consequence is exclusively compensatory, since the employee has the right to be indemnified from the damage suffered due to the probation period having remained unfulfilled.

The case in which the probation agreement was not validly applied, is different. In that case, still according to the Court of Cassation, the unilateral termination of the employment relationship due to failure to successfully complete the test cannot represent just cause or justified reason for dismissal and it is not exonerated from the regulations on limitations applicable to dismissals, thus leading as an effect, to the reintegration.

Conclusions

Given the trend of the judgement under review, in the case of unlawful application of the probation employment agreement, a “conversion” of the relationship occurs from probation period to open-term employment contract, thus meaning that in the case of withdrawal, when the requirements have been met, the applicable regulations on dismissal are those of the ordinary regime for individual dismissals.

However, in the case of withdrawal ordered during the probation period, with the agreement attached to the employment contract being lawful, the “special regime” applies originating from the processing of case law, and different from the ordinary regulations on individual dismissals. In said case, the employee has solely the right to compensation for the damages suffered. This means the continuation of the probation period for the remaining term established or the reimbursement of the damage. Basically, the declaration of unlawfulness of the withdrawal does not mean that the employment relationship must be deemed as been permanently established.