Court of Cassation: invalidity of the probation clause leads to the application of legislation on dismissal restrictions

The Court of Cassation with judgement No. 17921 dated 12 September 2016 ruled that if a probation clause included in the employment contract is found to be invalid, the employer’s termination of the contract is subjected to the application of the protections against unlawful dismissal. Thus, the Supreme Court of Cassation reversed the interpretation provided by the Court of Appeal, according to which the invalidity of the probation clause had to be followed automatically by reinstatement of the employment relationship and compensation for damages in an amount equal to the wages accrued from the date of withdrawal until the reinstatement. In fact, the Supreme Court referred to the following principle of law: “Dismissal triggered on the wrongful assumption of the validity of the probation clause, in truth invalid, referring to a permanent employment relationship, is subjected to the application of the rules restricting dismissals; therefore, the employee shall be under the protection provided by Law No. 300 dated 1970, article 18, if the employer does not attach and does not demonstrate the absence of the dimensional requirement, or the protection recognized by Law n. 604 dated 1966, in the absence of the necessary conditions for the applicability of the effective protection”.