Legitimacy of the probationary period that exceeds the maximum duration provided for in the national collective bargaining agreement (NCBA)

Case ref: Court of Cassation, Employment Section, Order No 9789 of 26 May 2020

With this Judgement, the Court of Cassation returns to the issue of the legitimacy of a clause that provides for a probationary period longer than the maximum duration allowed under the NCBA, but within the limit of six months under Article 10 of Law no. 604/1966.

In the case in question, the individual contract contained  a probationary period of six months, whereas the applicable NBCA provided for a maximum of five months.
The Court of Cassation, citing one of its own precedents (Court of Cassation, Employment Section, no. 8295 of 19 June 2000), reaffirmed the principle that the individual contract may establish – always in compliance with the maximum limit of 6 months – a probationary period longer than the maximum period contained in the applicable NCBA, only when «the particular complexity of the tasks entrust to the worker makes it necessary, for the purposes of a valid experiment and in the interests of both parties, to have a period longer than that considered usually  appropriate».
The Court went on to specify that the burden of proof falls on the employer «to whom the longer probationary period gives a more ample right of dismissal for failure to pass the trial period».

The Judges observed that the probationary period is considered the exception, as demonstrated by the fact that the legislature requires it to be in writing: «The burden of the written form was therefore imposed to protect the weaker party in a regime unfavorable to the probationary period, considered as the exception, with respect to the protections that open-ended contracts afford, especially with regard to withdrawal».
And so, continues the judgment in question «the legislature’s unfavorable attitude towards the probationary period is fully supported by the orientation of this Court according to which the worker has an interest in the probationary period being minimal, or in any case not exceeding the time strictly necessary for checking his technical and professional skills (Court of Cassation, 5 March 1982 no. 1354; Court of Cassation, 25 October 1993 no. 10587)».
The Judges found, in principle «the nullity of the agreements aimed at extending the duration of the probationary period beyond what was determined by the the social partners to the NCBA».
The Court of Cassation, therefore, agrees and reaffirms this orientation «in that where the trial period  in the individual contract is longer than that established by the NCBA of the sector, it must be considered more unfavorable for the worker and, as such, is replaced by the Law, unless the extension is shown to be actually more favorable for the worker, with the burden of proof on the employer».