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.