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The issue of compensation for damages for abuse of fixed-term contracts in the school sector continues to be debated. A recent ruling by the Supreme Court confirms principles that can now be defined as balances on the issue that should be remembered.
In fact
With the sole motive of appeal, the MIUR challenges the recognition of the right to compensation for damages as a priority, ordered against some teachers despite the fact that they have been placed in office following the extraordinary recruitment plan prepared by the MIUR itself as of September 1, 2015. For the Supreme Court, the appeal must be admitted, for the reasons set out below. (Civil Labor Cassation Section, Sent., (Hearing 11-26-2019) 06-01-2020, n.10413). The issue debated here has been examined in multiple decisions of the Court based on judgments no. 22558 and n. 23868 of 2016, where principles of law were affirmed – then referred to in numerous other subsequent judgments (see, among many: Cass. N. 3474, n. 3473, n. 3472 of 2020; Cass. N. 30573, n. 20918, n.19270 of 2019 and Cass. N.28635, n.26356, n.26353, n.6323 of 2018) – which was also received in the case in question now on the basis of the indications provided by the Court of Justice in multiple trials in this regard.
Stabilization cures the abuse of forward contract iteration
The judges firmly affirm that “in the school sector, in the hypothesis of illegitimate repetition of fixed-term contracts stipulated in cd. organic by law, which took place on July 10, 2001 and before the entry into force of Law No. 107 of 2015, for ATA faculty and staff, the stabilization acquired through the previous system must be considered proportionate, effective, sufficiently energetic and adequate to properly sanction the abuse and “nullify the consequences of the infringement of EU legislation” of hiring, understanding that the entry into the position does not exclude the possibility of claiming compensation for additional damages, with charges of complaint and proof by the worker who, in this case, does not benefit from any compensation for the alleged damage (see, for all Cass. nº 16336 of 2017) “.
On the other hand, the judges point out that in the case of the repetition of the fixed-term contracts stipulated in Law No. 124, art. 4, paragraph 1, which took place before the entry into force of Law July 13, 2015, n. 107, with the teaching staff, for the coverage of chairs with vacant positions available as of December 31 and that foreseeably remain that way throughout the school year, a proportionate, effective, sufficiently energetic and adequate measure must be enabled to duly punish abuse and to “cancel the consequences of the violation of EU law” the stabilization measure provided for in Law no. 107 of 2015 (cited in Case No. 3472 of 2020) “.
The 8 principles expressed by the Court of Justice of the EU
“These principles were recently confirmed in the light of the judgment of the EU Court of Justice of 8 May 2019, case C494 / 17, Rossato (see, in particular, the judgments of 12 February 2020, no. 3472 and No. 3473, reasons for which reference is made in accordance with article 118 disp. att. cpc In these judgments it was specified, in summary, that:
a) Taking into account the principles affirmed by the Court of Justice in the cited judgment, today it must be reiterated (paragraph 84 of the Court’s judgment no 22552 of 2016) that entering the role chosen by the Italian legislator in 2015 constitutes a alternative measures, capable of punishing and annulling the community crime, identified by the Court of Justice, which was summarized in the undue reiteration by the employer’s PA of the fixed-term contracts;
b) the considerations made by this Court in the aforementioned judgment no. 22552 of 2016 on the importance to be attributed (pn 79), regarding the positions involved in the discipline of the new regime;
c) as stated in the judgment of this Court no. 22552 of 2016 (pp. Nos. 81 and 82) the satisfactory way of being placed in the role with temporary rigor, constitutes both a sanction and, from the beneficiary’s point of view, a reparation;
e) regarding the repression of abuse and offense, the considerations already made by this Court in judgment no. 22552 of 2016;
f) It should be noted that the repeal of Law no. 107 of 2015, art. 1, paragraph 131, established by Legislative Decree of July 2018, n. 87, art. 4-bis, paragraph 1, converted by Law August 9, 2018, n. 96, “ratione temporis” is not applicable to cases like the one at hand;
g) The equivalence and effectiveness of the admission to the position obtained according to the promotion system provided for by the previous hiring regulations or by virtue of the extraordinary recruitment plan was, on the other hand, also recognized by the ruling of the Court of Justice in the ruling Rossato (pp. 34-37);
h) In relation to compliance with clause 4 of the CES, UNICE and CEEP Framework Agreement on fixed-term work annexed to Directive 1999/70 / EC, this Court, considered prevented from complying with interpretation, declared that “Regarding the recognition of time of service of temporary teachers permanently placed in the functions of the school administration, Legislative Decree No. 297 of 1994, art. 485 must be set aside, as it contradicts clause 4 of the Framework Agreement annexed to Directive 1999/70 / CE, in cases in which the seniority resulting from the application of the criteria indicated by it, together with that established by ‘Art. 489 same decree, supplemented by Law No. 124 of 1999, art. 11, paragraph 14, is less than recognizable to the comparable professor hired “abigine” indefinitely “.
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