When dismissal ordered due to failure to successfully overcome a probation period is lawful

The Court of Brescia, with its judgement dated 3 November 2017, has declared lawful a dismissal ordered to a female employee due to her failure to successfully overcome the probation period. In particular, the employee claimed that probation period agreement attached to the job contract was void due to the undefined tasks assigned, since she was hired as “Commodity Manager” and registered in the 6th Category of the National Collective Labour Agreement (CCNL) for the Private Metalworking and Mechanical Engineering Sector. On the contrary, the Court deemed the descriptions more than adequate, recalling the opinion of the Court of Cassation according to which “especially when the work is of an intellectual nature and not merely manual, the tasks do not have to be necessarily listed in details, being sufficient that, on the basis of the wording used in the contractual document, they can be determined”. Moreover, the Court highlighted that the meaning of the term “Commodity Manager” was well known to the employee, since she had, among others, provided to the company a curriculum vitae in which she stated to have held the same role when working for another company. And not only that. The employee also stated that there was lack of correspondence between the tasks assigned and those established in the contract. This was another claim that the Court rejected given that, based on the documentation provided on file, the employee, right from the beginning of her employment as an employee of the Defendant, had been assigned to tasks perfectly in line with the ones agreed. The employee also claimed that the probation period was impossible to successfully overcome due to its short term, since she had been absent first for vacation reasons, then due to illness and finally for early pregnancy leave. The Court, in rejecting also this claim, pointed out that the employee – even if excluding from the calculation of the days actually worked the aforementioned periods – had worked for 2/3 of the probation period originally anticipated and, thus, for sufficient time to allow the employer to assess her suitability to hold the requested role. Finally, in reference to the reasons of the company brought forth as justification for the dismissal and contested by the employee, the Court, after having pointed out that typically a termination due to failure to overcome the probation period does not require the employer to provide any specific justification, made reference to a judgement of the Constitutional Court according to which, “the employer who terminates a work relationship based on a probation period with a female employee that the employer knows to be pregnant at the time of dismissal, must justify the reasons that led to a negative outcome of the probation period so that the other party can understand the matters that led to the failure and the Judge has the information necessary to carry out a reasoned and fair assessment on the real reasons for the termination, in order to exclude with reasonable certainty that it was due to the fact that the woman was pregnant”. According to the Court, the Defendant had met its obligation by specifying in the related notification all the reasons that led it to decide to terminate the work relationship while the plaintiff could not prove the alleged discrimination. At the end of the ruling, the Court, therefore, rejected the action of the employee who was sentenced to pay all legal fees, quantified in the amount of EUR 2,500, in addition to all ancillary charges by law.