Probation clause: specification requirement and reference to collective bargaining (Andrea Di Nino, Sintesi- Ordine dei Consulenti del Lavoro, marzo 2022)

31 March 2022

In its ruling no. 1099 of 14 January 2022, the Court of Cassation outlined the specification requirement of the probationary clause and its inclusion in the individual employment contract.

The facts of the case involved a worker bringing proceedings to obtain a nullity declaration of the probationary clause attached to her fixed-term employment contract with an employer. The employer terminated the contract for failure to pass the probationary period. The worker claimed that the termination was null and void and the company should be ordered to pay damages, proportionate to the wages she would have received until the natural expiry of the employment relationship. This compensation was partly due to the difficulty in finding other employment, given her 46 per cent disability status.

The first instance ruling upheld the worker’s claims and this was confirmed on appeal.

Both instances established that there was “a lack of specification in identifying the tasks for which the worker was employed in the probationary clause.”

According to the court of appeal, the employment contract between the parties did not specify the tasks to which the worker would be assigned. The individual contract referred to a “person in charge of jobs that are not part of the production cycle.” This meant “the tasks specification lacked practical meaning.” Similarly, the reference made by the contract to “level 3” of the applicable National Collective Labour Agreement “did not specify the tasks to be performed because the collective provision mentioned that level 3 included “jobs similar to cleaning”, without further specification or example.”

A further element of uncertainty related to the tasks under probation was the clause in the individual contract according to which the tasks and objectives assigned would be specified only after recruitment.

The employer appealed to the Court of Cassation against the ruling, on several grounds. The company argued that “the need to specify the duties for probationary clause purposes does not require them to be detailed and their identification can be made by reference to the declaration of the collective agreement.”

According to the employer, the National Collective Labour Agreement provided detailed evidence of the reference tasks of the worker classification level in addition to the general declaration. The position was identified by the National Collective Labour Agreement as related to “transport work, manual loading and unloading, cleaning and similar work. This includes using mechanical means.”

The employer considered that the reference made “per relationem” in the individual contract and referred to the National Collective Labour Agreement was appropriate, to meet the specification requirement.

In its appeal, the company explained how the clause in the individual contract, according to which duties and objectives would be specified later, did not lend itself to being interpreted, as held by the Court, as a “lack of specification of the duties under probation”, but rather as a “reference to necessary service “micro-specifications” which the employer would use to specify the duties daily based on their performance.”

The employer’s appeal was not upheld by the Court of Cassation, which pointed out that the probationary clause reason must be found “in the protection of the common interest of both parties to the employment relationship, as it is intended to implement a probation through which employer and worker can verify the mutual convenience of the contract. The employer verifies the worker’s capabilities, and the worker assesses the extent of the service required and relationship conditions.”

The Supreme Court observed that “the need for specifications, which in the case of a partially invalid worker must be assessed rigorously […] is functional to the proper conduct of the probationary period and the assessment of its outcome, which must be carried out based on the performance and duties described in the individual contract. The specification may be made […] by referring to the declarations of the collective agreement for the worker classification, provided that this reference is sufficiently specific and ascribable to the most detailed classification concept. This means that if the category of a given level includes several profiles, specification of the individual profile is necessary, while mentioning the category alone would be generic.”

According to the court, the ruling under appeal did not theoretically exclude the possibility of supplementing the clause in the individual contract by referring to the worker’s collective agreement classification and level. However, such a reference cannot apply “in this case to provide specification of the duties on which the probation should have been carried out.” This is because “the collective classification for the worker’s professional position, mentioned, among the assigned tasks, “similar” duties”, in addition to cleaning. This indefinitely broadened the scope of the tasks which could be assigned to that level. The employer’s appeal was rejected since it was not possible to establish any automatic mechanism between reference to collective bargaining and assessment of the probation clause specification.

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