Termination for failure to complete a probationary agreement, a case of unjustified dismissal due to the absence of a criminal offense, gives rise to the right to reinstatement pursuant to the second paragraph of Article 3 of Legislative Decree 23/15.
An employee hired on a probationary contract was dismissed for failing to pass the probationary period. The Venice Court rejected the appeal with a ruling overturned by the District Court, which, declaring the probationary contract null and void due to the lack of written form, reinstated the employee and ordered the company to pay 12 months' salary.
The company appealed the decision before the Court of Cassation, challenging the applicability of reinstatement protection in the event of the invalidity of the probationary agreement.
The Court of Cassation, with ruling no. 24201 of September 1, 2025, rejected the appeal, citing the recent Constitutional Court decision 128/24, which it described as an "important step forward in the debate on protections" in affirming the right to reinstatement in the workplace whenever the material fact alleged by the employer is proven to be non-existent.
Regarding the consequences of dismissal ad nutum in relation to a void probationary period, the transformation of employment, while resulting in the loss of the right to terminate, requires that the termination be subject to an ordinary judgment on the verification of just cause or objectively justified reason.
The Supreme Court, disregarding the previous position that dismissals initiated on the basis of a probationary agreement were void and subject to merely compensatory protection, has reconsidered the previous position in light of constitutional case law, stating that the realignment of protections allows dismissals ordered for failure to complete a probationary agreement to be considered unjustified dismissal due to the lack of justification for the offence, with the right to reinstatement protection under Article 3, paragraph 2, of Legislative Decree 23/15.
Attorney Nicoletta Di Lolli