_Several probationary period clauses, but just one dismissal

Several probationary period clauses, but just one dismissal
By Andrea Savoia and Silvia Fumagalli


Green light of the Court of Cassation to dismissal for non-completion of the probationary period, even in case several probationary period clauses are provided for the same tasks with different contractors.

This is the principle stated by the Court of Cassation in a recent ruling (ruling no. 18268 dated July 11th 2018) which is in contrast with another precedent in the case law (ruling no. 17371, dated September 1st 2015). That time the Supreme Court stated that the probationary period clause is unlawful in case of succession of contracts in a tender, since the former contractor already verified the employee for the same tasks.

To provide a probationary period in an employment contract is important for the following reasons: during the probationary period the employer and the employee can verify if the employment relationship is convenient for both parties and, at the end of the probationary period, they may withdraw from the contract if they consider the relationship no more “convenient”.

However, not all probationary period clauses are valid. The probationary period clause is unlawful when the test on the employee had a positive result, for tasks for which he/she was hired, and the same employee performed such activities in favour of the same employer during a reasonable period of time (for example as a result of a temporary agency work or one or more fixed-term contracts, followed by an open-handed contract, even after a certain period of time).

At the same time, however, in case there is a probationary period clause in two following contracts between the same parties, it may be considered as valid and lawful by the case law, as long as the probationary period clause is aimed to an objective aim and not to elude the law, for example when the clause allows the company to verify the employee’s professional skills related to new and different tasks or in case the probationary period is aimed to verify not only professional skills but also the employee’s behaviour and personality related to the working activity. Indeed, these aspects may vary during the time as a result of different causes related to habits or health problems.

Considering the contrast in the case law on probationary period, employers shall pay attention to the probationary period clause in case of different relationships between the same parties or in case of a succession in a tender of different contractors and waiting for the prevailing case law…

Try to believe…or to hire!