The dismissal of probationary workers: between discretion and burden

The dismissal of probationary workers: between discretion and burden

(Court of Milan, 22 June 2022, no. 1638)

Labour Law

(case followed by Andrea Beretta)

An employee hired with a part-time contract and dismissed during the probationary period, challenged the termination before the Court of Milan. It was first of all claimed that the probationary agreement should not have been affixed to the contract, since on the one hand, it was the subject of an implicit inter partes waiver formalised in a conciliation report (relating to a previous fixed-term contract entered into between the parties themselves); and on the other hand, precisely because of the existence of a previous employment relationship that had already allowed the probationary period to be carried out. Moreover, the employee argued that the duration of the probationary period had been determined without taking into account the part-time regime, with the consequent request for a proportional reduction thereof and unlawful termination, as it occurred after the expiry of the probationary period thus redetermined and therefore with the relationship allegedly stabilised. In this context, in essence, the dismissal was without just cause or justified reason.

The employment tribunal rejected all of the employee’s claims, affirming first of all, the legitimacy of the imposition of the probationary agreement, since it had not been the subject of an express waiver in the conciliation report. Consequently, in accordance with the principles set out in Article 1362 et seq. of the Civil Code, it held that the parties’ common intention was to comply with what was precisely set out in the contract of employment, including therefore, the probationary period. The legitimacy of the reiteration of the probationary period in the second contract was also implicitly held in the case at hand, as it was intended to allow both parties to assess the appropriateness of the employment relationship, especially since the previous fixed-term contract dated back more than ten years and had an entirely different purpose.

Moreover, the decision found that the clause relating to the probationary period had also been correctly provided for in terms of time, on the basis of the contractual-collective discipline applicable to the case, which, for full-time workers of the same level as the person involved, provides for a duration of the agreement of three months and states that in relation to part-time workers (who can, in theory, work not all but only some days) the duration must be the same but considering only working days (in the case in point, net of holidays, the three months corresponded to 77 working days). In this case, the duration of the covenant set at a total of 183 days, was therefore deemed legitimate, as it allowed the part-time employee, with services to be rendered only three days a week, to actually work precisely 77 days.

Finally, the Milan Court considered the termination to be timely, since it was received by the employee within the contractually (and correctly) provided term and in accordance with established case law on the subject. It held that the complaint regarding the lack of just cause or justified reason was inadmissible, given the discretionary nature of the employer’s termination during the probationary period. This discretion relieves the employer from proving justification, without prejudice to the employee’s burden – which, however, was not discharged in the present case – of proving that the termination itself was caused by an unlawful motive or was in any event extraneous to the function of the probationary agreement.