If the abusive use of a fixed-term contract by a public administration is proven, the worker is always entitled to compensation for damage, without having to provide rigorous proof of the harm suffered.
This is the principle laid down by the Labour Division of the Court of Cassation in judgment No. 1260 filed on 23 January 2015. The decision overturns the case-law approach according to which it is the employee who must provide precise proof of the damage suffered, even where a breach of the rules limiting the use of flexible work has been established. According to the judgment in question, by contrast, the worker need only prove (including by presumptions) the abuse, while the damage is in re ipsa (inherent in the abuse itself).
The case before the Supreme Court concerned a female worker hired on a fixed-term basis by a local authority. In the proceedings, the employee obtained a declaration that the employment contract was unlawful, but not a right to compensation, since she had not provided proof of the financial and professional damage for which she sought redress.
The judgment in question overturns this approach by relying on the “Papalia” order of the Court of Justice of the European Union of 12 December 2013 (Case C-50/13), which held that Member States cannot make compensation for damage to a fixed-term worker in the public sector conditional on the provision of excessively difficult proof.
The Court of Cassation observes that “Article 36, paragraph 5, of Legislative Decree No. 165 of 2001, in the part where it provides that “the worker concerned is entitled to compensation for the damage arising from work performed in breach of mandatory provisions”, must be interpreted – with reference to situations other than that of school-sector precarious workers – to mean that the notion of damage applicable in this case must be that of “Community damage”.
The damage must be regarded as a sort of penalty imposed ex lege on the public employer. In particular, it must be “compensation consistent with the criteria of adequacy, effectiveness, proportionality and deterrence in respect of the abusive recourse by the public administration to the conclusion of fixed-term contracts, configurable as a sort of penalty ex lege on the employer – who may prove the existence of any negative repercussions avoidable by the person concerned that can be excluded – whereas the person concerned need only prove the unlawful conclusion of several fixed-term contracts on the basis of needs “falsely indicated as extraordinary and temporary”.
Therefore, “without prejudice to the worker’s ability to make extensive use of presumptive evidence, it is sufficient that the claimant provide factual elements capable of founding, in precise and concordant terms, the presumption of a situation of abusive recourse to fixed-term contracts to his or her detriment, it being for the defendant administration to prove that no abuse occurred“.
The Court also stresses that redress for the damage “must be complete – both as regards the damage from loss of employment understood in the broad sense and as regards pay-related aspects” and “proportionate to the individual case“. To this end, “account must be taken, among other things, of the number of fixed-term contracts, the interval of time between one contract and another, the duration of the individual contracts and the overall duration of the period concerned. But the principle of fairness and good faith in the performance of the contract must also be considered (…) as an expression of the duty of solidarity founded on Article 2 of the Constitution.”
For the quantification of the damage, the Supreme Court judges suggest, as a general tendency, applying the criteria laid down by Article 8 of Law No. 604/1966 (from a minimum of 5 to a maximum of 12 months’ pay). By contrast, the application of the flat-rate mechanisms provided for by Article 32 of Law No. 183/2010 (the so-called “collegato lavoro”) and by Article 18 of the Workers’ Statute must be excluded, as they concern situations different from the one under examination.
This last passage of the judgment, however, raises some doubts. Aside from the choice of the most penalising flat-rate regime among those cited, applying the aforementioned criteria risks denying the worker the possibility of obtaining “complete” compensation “proportionate to the case“, with an evident disparity of treatment between public and private workers. Indeed, in the face of the same unlawful conduct, the latter would be entitled, in addition to the flat-rate indemnity, to the conversion of the employment relationship into one of indefinite duration, whereas the former would be granted the indemnity alone.
A systematic interpretation of the rules, compatible with Article 3 of the Constitution and with EU law, would instead seem to suggest applying the general institution of compensation for damage under Article 1218 of the Civil Code, with an order against the public administration to pay full, complete and proportionate compensation, determined according to the criteria in Articles 1223, 1225 and 1227 of the Civil Code, taking account of all the harm suffered and with a deterrent effect equivalent to that produced in the private sector by the sanction of conversion.
Source: http://www.altalex.com/index.php?idnot=70313#sthash.kc6oUwl3.dpuf
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