Public Administration non-recruitment – employee unentitled to the social security position update (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, January 2021)

26 January 2021

The Supreme Court of Cassation, by Order no. 25225 of 10 November 2020, affirmed that, if there is an unlawful infringement of a right to be employed by a public administration, the injured employee is entitled to compensation for loss of remuneration, but not for the loss of their social security position with the general compulsory social security.

The facts of the case involved an employee who challenged a decision declaring her disqualified from the minimum hiring percentage for civil invalids, which she had claimed at the time of her registration on the list of substitute teacher applicants at the nursery school.

The employee’s legal action was based on the belief that the measure was based on a medical assessment which unlawfully declared she was not invalid.

The employee’s appeal was upheld by the relevant Court of Appeal, which ordered the Ministry involved to pay compensation for the pecuniary and non-pecuniary damage and updated her contribution and social security position for the period she had been unemployed. This had to be carried out by paying the social security contributions due for that period.

The dispute was brought before the Court of Cassation, which stated that if the unlawful act by the Public Administration resulted in the infringement of the employment right, the employee could not claim compensation. Such claims presume “the establishment of the bilateral relationship”, a circumstance which did not occur. According to the Supreme Court judges, the employee is entitled “to claim compensation for damages under Art. 1218 of the Italian Civil Code.”

If the employee is in a position to demonstrate that she has been “deprived of employment or has worked in deteriorating conditions” as a result of the unlawful act, she may claim compensation for loss of earnings, i.e. for the loss of earnings resulting from the loss of wages.

The Court judges’ view was that the interested party could not request her social security position updated by way of compensation, since “the social security relationship, which is unavailable, arises only if the necessary legal requirements are met and the Social Security Institute could not accept undue contributions.”

The Supreme Court explains that employment is an essential prerequisite for the social security relationship, which is independent but unavoidably related. “The employer’s obligation to pay contributions due is part of the employment relationship, and is an obligation to do something, not an employee right to claim contributions.”

The existence of an employment relationship is a necessary condition for an employer to be ordered to pay contributions.

The Supreme Court partially accepted the appeal filed by the Ministry involved and declared that the social security position of the employee illegally removed from the compulsory employment lists should not be updated.

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