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Several conflicts have arisen and will continue to arise over time in relation to the fact that after the controls carried out by the administration at the time of establishment of the employment relationship, the worker in question is not in possession of the required qualifications. The question is whether or not the salary should be repaid in cases like these. Another issue is the evaluation of the service. These are two different procedures with different consequences.
The fact
The case sub iudice refers to a fiscal damage derived from the fact that the accused has received a remuneration from the MIUR in the didactic direction in the absence of the requirements of the law, given the lack of qualification necessary to be included in the permanent ranking of the personnel of ATA. In particular, this lack was derived, according to the judges, from the undisputed administrative and criminal investigation, to enter this ranking, from the false declaration of having worked as a school assistant in an unfair circumstance, as was denied by both the Municipality and by the School Director of the Institute who excluded any service of the accused in the Institute itself.
If two schools are contiguous it does not mean that they are unitary
The Court of Accounts with the Lombardy section provision 28585 Sentence 57/2017 establishes that “no excusable error is configurable, as proposed (by the applicant) with respect to the completion, in the aforementioned years, of service in the municipal school materially adjacent to the state one; It is enough to respond to this imaginative argument that the physical contiguity between two Schools does not make them unitary, being legally distinct and headed, among other things, by autonomous subjects (Municipality and MIUR) with which they establish, obviously, autonomous and different. Work contracts “.
Work performed without the required title ex lege constitutes a detriment to the tax authorities.
“So, as regards the real objection to the performance of the functions in the didactic direction for their benefit, it is legally irrelevant in accordance with article 2126, paragraph 1, second part, of the Italian Civil Code, since that it is a work based on a contract whose specific cause is contrary to the principles of public order, as clarified by this Court in the judgment of March 26, 2012 n.2012 (confirmed on appeal by id., section I ap., n.511 of 2014; see also Appeal Section of the Sicilian Region n. 127/2011), in the sense referred to here, in accordance with the consolidated jurisprudence of this Court, firm in the conviction that the provision of compensation in favor of subjects who have carried out an activity without the possession of the prescribed qualifications.at the expense of the budget of the institution in question, taking into account the fact that the emoluments received corresponded to the services actually e lent (in this sense, see ex plurimis: Lazio Section n. 16/1998; Puglia section n. 14/2000; Section III ^ Central Appeal n. 27 9/2001; Appeal Section for the Sicilian Region n. 154/2006). Furthermore, even the Supreme Court, in similar facts related to the lack of legal qualifications for teaching qualifications, has recognized the non-debt of the remuneration in accordance with article 2126 of the Italian Civil Code due to a conflict with the mandatory norms ( Cass., 5131/2004; id., 4341/1986) “.
Full salary should not be returned if you have worked without a qualification, but you will have to assess compensation fairly
“However, in light of the general civil principles on undue or unjustified enrichment (hypothesized before the nullity of the contract due to illegality of the object or cause: Cas., 8830/1987) and, above all, of art. 1, section 1-bis of Law 20/1994, which obliges to assess the advantages obtained by the AP for the usefulness that the defendant’s work activity entails for a professional service not specially qualified and that does not require the possession of specific technical knowledge . – cultural, in any case owned by the defendant for previous similar services provided (and mentioned in the request to participate in the contest), it must be recognized that the work carried out has in any case constituted a utility for the State Administration, although in to a lesser extent than the MIUR would have received if the service had been performed by a person in possession of a complete prior work experience application (in part, however, undeniably possessed and documented), and that this activity was in any case free censorship by the Office in favor of which it was loaned. It follows that, given that the exact value of the profits derived from the performance of activities that are only partially fungible cannot be determined with certain calculation elements, they must be quantified in a fair way, also taking into account the specific previous experience previously possessed. mentioned, and in this sense, the Board considers it fair to recognize to the mentioned profits a value equivalent to 80% of the net amount improperly collected ”.
Untitled ATA Service Personnel, How Do You Rate It?
The reference in question is Ministerial Decree 640/2017 in art. 7 point 7:
“As a consequence of the determinations referred to in the previous paragraph, any service provided by the candidate in the absence of the qualification required for access to the profile and / or profiles requested or based on false statements, and assigned in the previous rankings of third-level club and school, will be, with a specific provision issued by the director of the school already identified in section 5 above, declared as paid in fact and not by law, with the consequence that no score should be attributed ” .
For teachers the reference is OM 60
The MIUR note of July 22, 2020 establishes in point 2 that “The service provided over the years without an access qualification is valid for the purposes of evaluating the service if and only if the aforementioned access qualification is in possession of the candidate at the time of application “; Point 3 of the note indicates that as an exception with respect to point 2, with regard to the GPS of the second age group of childhood and primary, according to table A / 2 and for graduate applicants, the service was provided in a common place or the support (obviously without the required qualification) of the students of science of primary education can be evaluated for the relative ranking, as specific and not specific according to the grade, exclusively for the relative rankings of infancy and primary ” .
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