Termination of the probation period: cases of lawfulness

With its judgement No. 273 filed on 21 September 2018, the Brescia Court of Appeal has ruled on a few aspects of the probation period. In the case at hand, a woman worker had filed a petition to the court of first instance seeking annulment of the dismissal enforced for failure to pass the probation period. The judge dealing with the case rejected the allegation of nullity of the probation period due to the undefined nature of the duties assigned, considering that, for the purpose of their identification, the indication in the letter of engagement, mentioning the professional category and the specific duties she would perform, namely, the “Commodity manager” role (corresponding to the professional figure of procurement specialist) was sufficient. Indeed, this was expressly indicated below the professional category and well-known to the worker, as she had previously performed this role. Moreover, regarding the alleged inadequacy of the length of the probation period, which ended before full lapse of the agreed six months, the judge remarked that the employee had worked for 2/3 of the agreed probation period, and that this length of time was certainly not short, as it was enough to allow the employer to assess her suitability to hold the role required, in addition to the job done. The judge also rejected the woman’s complaint regarding an alleged discrimination due to her pregnancy condition, remarking that she had not provided sufficient evidence. Instead – in the opinion of the judge – in the course of the proceedings it had emerged that the effort made by her was below expectations and that she had been too reluctant to collaborate with her colleagues and to share the information related to her activity. The woman therefore filed an appeal. The Court of Appeal, called to rule on the matter, upheld the decision of the judge of first instance and remarked that the reference per relationem to the national collective bargaining agreement and the fact that the employee had already performed some specific duties with her previous employer certainly were sufficient to deem the challenged probation period valid. As a matter of fact, on this point, the Court of Appeal stated that: “the petitioner herself proved to have good knowledge of such latter role (editor’s note: the role assigned) and related duties, given that in her CV prior to hiring, English version, she had defined herself, in regard to the position held with her former employer, as a “commodity manager.” According to the Court of Appeal, another factor able to prove the perfect knowledge of the duties that the petitioner was supposed to perform consisted in the fact that she had indicated on an online portal, after hiring, a detailed list of her duties. As a result, the judgement at hand rejected in full the appeal filed by the worker, having established the non-existence of the grounds for nullity of the probation period alleged by the petitioner.