With order no. 21672 of 23 August, the Court of Cassation returned to rule on the affixing of the term to an employment contract for substitutive reasons of personnel absent due to illness, with specific reference to complex business realities (in this case, the principal Italian airline).
In this regard, art. 19 of Legislative Decree 81/2015 establishes, in paragraphs 1 and 1bis, that:
“A term of up to twelve months may be applied to the employment contract. The contract may have a longer duration, but in any case not exceeding twenty-four months, only if at least one of the following conditions is met:
a) temporary and objective needs, extraneous to ordinary activity, or replacement needs of other workers;
b) needs related to temporary, significant and non-programmable increases in ordinary activities.
In the event of the stipulation of a contract lasting more than twelve months in the absence of the conditions referred to in paragraph 1, the contract becomes permanent from the date on which the twelve-month period is exceeded”.
The Supreme Court upheld the first ground of appeal, in which the applicant company had censored the appeal sentence for having "considered that the employer had not fulfilled its evidentiary burden with respect to the actual existence of the replacement reasons indicated in the individual employment contract and the causal link between these reasons and the temporary employment of a worker”.
In particular, the Court of Appeal considered that “the list of permanent employees with the qualification of flight attendants working at the Milan base was not sufficient for this purpose, indicating the number of days per month of absence due to illness of each, nor was the list of the other seven staff hired in the same period for the same reason, given that the circumstances inferable from this documentation did not allow to ascertain if and when the worker had actually operated in place of the absent colleagues for illness and, in particular, if they had actually worked in their roles", recalling, but not giving correct application of, a jurisprudential dictum (Cass. no. 1577/2010, 23119/2010 and 10068/2013), according to which in case of "complex business situations, in which the substitution does not refer to a single person, but to a specific, occasionally discovered, production function and the term must be considered legitimate if the statement of the need to replace absent workers - alone insufficient to fulfil the burden of specifying the same reasons - is supplemented by the indication of additional elements (such as the territorial area of reference, the place of work performance, the duties of the workers to be replaced, the right of the same to keep the job) that allow to determine the number of workers to be replaced, even if not identified by name, without prejudice, in any case, to the verifiability of the subsistence of the proposed legitimacy assumption" as the replacement does not refer to a single person, as can happen in small companies, but to a specific productive function that is occasionally discovered.
The Supreme Court therefore held that the contested sentence was repealed and the case was referred to the same Territorial Court in a different composition, that the second substantive judge was not "in substance uniformed, as regards the coherent repercussions on the evidentiary level, to this principle of right, requesting with proof that C. had replaced absent colleagues indicated in the constitution and effectively worked in the sections of colleagues absent due to illness, a misaligned test for specificity of content with respect to the level of specification of the replacement reasons, as deemed necessary and sufficient by the aforementioned orientation, for the purposes of the legitimacy of the term, in complex business situations”. (EB)
