Categories: Insights, Case Law


28 Aug 2018

Withdrawal during the trial period: standard protection if the agreement is void

The Court of Cassation, with ruling No. 17358 dated 3 July 2018 has issued another ruling on the dismissal ordered for failure to successfully pass the trial period and on the protections applicable when the employer’s withdrawal is unlawful if ordered on the incorrect assumption of the validity of the related agreement. In the case in question, the Court of Appeals having local jurisdiction confirmed the ruling of the Judge of first instance who had verified that the probation period agreement attached to the employment agreement was void thus declaring unlawful the withdrawal of the employer and applying the reintegration and indemnification protection as per article 18 of the Law No. 300/1970. In this respect, the local Court argued that the probation period had to be deemed void because only during the appeal, and thus late, the company had attached suitable justification to demonstrate the need for a longer period respect to the one established by the National Collective Bargaining Agreement applicable to the sector. Moreover, the local Court confirmed the ruling of the Court of first instance regarding the applicability of the actual protection, refusing the exception established by the aliunde perceptum and percepiendum principle, due to the fact that it was brought forth late, at the time of the appeal. The company filed an appeal at the Court of Cassation against said ruling. On the lawfulness of the matter, the Court restated its opinion (inter alia see Cassation ruling No. 17921/2016) according to which dismissal ordered on the erroneous assumption of the validity of the probation period agreement, in fact void since the probation between the parties had already occurred successfully, does not represent an exception of the application of the limitations on dismissals. This because freedom of decision as part of the probation period requires that said probation period is validly set-up. Therefore, since the requirements of substance and form called for by the law did not apply, the clause was void – given that the clause was partial and did not extend to the overall contract – leading to a “conversion” into a standard contract, with applicability of the related protection regime for unlawful individual dismissals, thus leading to the legal verification of whether or not the just cause or justified reasons principles applied. Therefore, the Court of Cassation has deemed the dismissal in question as occurred when the employment relationship had already become an open term relationship and having verified the lack of reason, applying the established case law principles of lawfulness regarding the responsibility of proof to be borne by the employer, also regarding the dimensional requirement.

Subscribe to our newsletter

Contact

Need information? Write to us and our team of experts will respond as soon as possible.

Fill in the form

More news and insights

1 Oct 2026

Corporate e-mail and defensive monitoring: when the GDPR and employment law lead to different outcomes 

The Piaggio case clearly illustrates how the same set of facts can give rise to profoundly different assessments depending on the perspective adopted. In its decision of 13…

1 Oct 2026

NASpI and Reinstatement: the Employee’s Election Causes Loss of the Benefit 

Headnote   In its recent judgment No. 24981 of 3 September 2026, the Italian Supreme Court held that, where a dismissal is set aside with an order of reinstatement…

1 Oct 2026

Did you know that… testimony given in court may have disciplinary relevance and, in the most serious cases, justify dismissal? 

The Italian Supreme Court, Labour Section, by order no. 25687 of 22 September 2026, addressed the issue of the disciplinary relevance of statements made by an employee in…

29 Sep 2026

Shadow AI in the workplace: how to govern risks, data, and security (Agenda digitale, 29 September 2026 – Vittorio De Luca and Martina De Angeli)

The spread of artificial intelligence tools used without corporate authorization exposes businesses to risks involving personal data, confidential information, know-how, and cybersecurity. To govern Shadow AI, organizations need…

24 Sep 2026

The concept of “territorial scope” in a non-compete agreement (Top24 Lavoro Ai – Il Sole 24 Ore, 24 September 2026 – Vittorio De Luca and Alessandro Ferrari)

Interpretative issues in light of the most recent case law on the nullity of non-compete agreements due to the indeterminacy of territorial scope By an order issued on…

16 Sep 2026

Did you know that… repeated violations of company procedures may justify the dismissal of a store manager?

The Italian Supreme Court (Labour Section), in Order No. 25231 of 11 September 2026, upheld the lawfulness of the dismissal for just cause of a store manager who…