Application of Leg. Decree 23/2015 in case of conversion of the fixed-term contract in Court
Case Ref: Cassazione Civile, sez. lav., 16 gennaio 2020, n. 823
Through the Court Ruling n. 823/2020, the Court of Cassation stated that the regime under Leg. Decree 23/2015 so-called “increasing protections contract” does not apply to fixed-term contracts entered into before the abovementioned Decree (March 7, 2015) and converted in Court, afterwards, into open-ended contract for nullity of the final term.
The Supreme Court remarks that “the court ruling ascertaining the nullity of the final term and ordering to restore the relationship unlawfully interrupted, with consequent obligation for the employer to allow the employee to return to work, has declarative effects, not constitutive effects”. With consequent “ex tunc effects of the conversion into open-ended employment”.
Furthermore, according to the Court of Cassation, a different interpretation would violate the principle of equal treatment because “it would entail a clear and unreasonable disparity of treatment between employees equally employed on a fixed-term basis contract entered into before the introduction of Leg. Decree 23/2015, converted, for nullity of the term, into open-ended contract on the basis of Court Rulings issued, by mere accident, before and after March 7, 2015“.
The Court of Cassation concludes for the non-applicability of the protection regime introduced by Legislative Decree 23/2015 in the event of conversion of a fixed-term contract entered into before 7 March 2015 into an open-ended contract, as a result of the nullity of the term ascertained by a ruling issued after that date.
Finally, the Supreme Court identifies the hypotheses where the conversion of the fixed-term contract is equivalent to the new hiring, in terms of applicability of the rules provided by the Jobs Act, yet resulting not detrimental to the principle of equal treatment, such as: the voluntary conversion/transformation of the relationship; the continuation of the relationship beyond the limits of the law (30 or 50 days in the case of fixed-term contract lasting respectively less or more than six months); the violation of the so-called stop&go and the violation of the maximum duration of 36 months (now 24).