_Contract at increasing protections: stop reinstatement!

The Tribunal of Milan confirms the sole application of damages when the probationary period clause is null.

by Marco Tesoro

 

Through Court Ruling no. 2290 issued on September 12th, 2017, the Tribunal of Milan granted (only) damages to the employee – hired through s.c. increasing protections contract – dismissed for failing the probationary period, while the probationary period covenant was null in the first place, since it was agreed after the hiring date.


Putting aside the formal and material requirements of the probationary period covenants, it is important here to examine the abovementioned Court ruling no. 2290 with reference to the consequences of the dismissal served for failing the probationary period, while the probationary period covenant is null in the first place.
In fact, this is argued amongst Judges.


Despite, over the years, the Tribunals and the Court of Cassation decided the above case in light of the different laws in place from time to time, we deem interesting to make a brief overview of those Court rulings, in order to better understand the above Court Ruling no. 2290 herein analyzed.


Prior to the 2012 Fornero Reform, there were no doubts about the application of the reinstatement (plus damages equal to the salary lost from the dismissal to the reinstatement – min. 5 months) in case of dismissal for failing the probationary period while the probationary period covenant was null in the first place.

 

After the Fornero Reform, Tribunals used to apply the “weak” reinstatement, providing reinstatement plus damages capped at 12 months.
In this regard, it is worth to mention the Court ruling of the Tribunal of Milan dated 24 May 2013, Tribunal of Rome dated 21 December 2013 and again Tribunal of Milan dated 14 May 2014.
The above Tribunals used to apply the “weak” reinstatement in light of article 18, par. 7, Law no. 300/1970, providing the “weak” reinstatement as consequences of unlawful “dismissal for objective reason given by the employee’s physical–psychic unfitness” as such including the dismissal for failing the probationary period (as stated by the Tribunal of Milan on 2014).

 

The Court of Cassation gave the same interpretation through the Court ruling no. 16214/2016 that confirmed, on one hand, the application of the weak reinstatement and, on the other hand, the ontological difference between the dismissal for failing the probationary period and the disciplinary dismissal.
This point is essential to better understand the Court Ruling no. 2290 herein analyzed, that focused on the dismissal served to an employee hired through s.c. increasing protections contract (Legislative Decree n. 23/2015).


As we know, the Legislative Decree n. 23/2015 has been adopted within the last labor law reform called Jobs Act (Law no. 183/2014) and only applies to open-ended employees hired after 7
th March 2015 (except managers), and provides the reinstatement in case of dismissal null, non-effective and “in case of dismissal for subjective reasons or just cause where it is proved that the fact alleged does not exist” (art. 3, par. 2, Legislative Decree n. 23/2015).


Therefore, in addition to dismissal null and non-effective, the Italian legislator has provided further hypothesis where the reinstatement applies, but those hypothesis refers to dismissal for subjective reasons only.


Given the above legal-frame, the consequences are argued amongst Tribunals, where in certain cases applied the reinstatement and in certain cases applied (only) damages.


With reference to the first hypothesis, it is worth to mention the Court ruling of the Tribunal of Turin dated 16 September 2016, when the Tribunal reinstated an employee hired through contract at increasing protections that was dismissed for failing the probationary period null, based on a null probationary period covenant.

The Tribunal considered the dismissal as grounded on subjective reasons related to the employee, and therefore to be considered as regulated by the mentioned art. 3, par. 2, of Legislative Decree n. 23/2015, since it was “totally unjustified”.


Now the Tribunal of Milan, through the abovementioned Court ruling no. 2290 and even before through the Court ruling no. 730/2017 – overturning its own previous contrary court ruling – only applied damages instead of reinstatement.


The Tribunal of Milan seem oriented towards a strict interpretation of the mentioned art. 3, par. 2, of Legislative Decree n. 23/2015 that, other than dismissal null and non-effective, provides the reinstatement only for dismissal for subjective reasons.
The above interpretation is in line with the Court of Cassation and with the Law no. 183/2014 that provided, amongst others, the purpose to limit “the reinstatement in case of null dismissals and specific cases of unjustified disciplinary dismissals”, therefore not mentioning the dismissal for failing the probationary period.