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The TAR of Friuli Venezia Giulia, with two judgments (n.415 and n.418 of December 1, 2020) clarified that the exclusion from the competence test (preschool) of the candidate who was detected a body temperature is not justified higher than 37.5 °: this cause of exclusion is not legitimized by any regulation, not even by those of an urgent nature intended to contain the spread of the Covid-19 virus. The TAR of Friuli also specified that the right to participate in the contest, since it aims to satisfy the right to work, cannot be treated as a temporary ban on access to a supermarket or perhaps a beach club.
Exclusion of tests to detect temperature above 37.5 °
A woman, admitted to the selection tests for the coverage of 12 positions of Educational Instructor of Infant Schools, vetoed by a Municipality, resorts to the TAR to challenge the legitimacy of the act of August 26, 2020, signed by the President of the Commission selection, delivered by hand on the same date, with which it was “taken from (…), where the written test is performed, and excluded from public selection … because a temperature higher than 37.5 degrees was detected. .. “.
Unjustified exclusion from the rules
The TAR accepted the complaints, canceling the contested deed, so the Municipality must evaluate the convenience of having a complementary test be carried out, admitting the applicant. According to the judges, the exclusion of the selection procedure ordered to the detriment of the woman is not legitimate: the situation that occurred is not comparable to that which occurs when the candidate appears for the tests without an adequate identification document, far from it, to that of the candidate who does not appear at all for the tests. The decision taken by the Municipality is not justified not even by the precautions imposed by the extraordinary nature of the pandemic emergency in progress, given that the right to participate in the selection in question by the interested party, as functional to the satisfaction of the right to work, cannot be degraded to the point of being treated as a temporary prohibition of access to a commercial facility or bathroom, decreed based on the result of the extemporaneous measurement of body temperature carried out by non-health personnel, without specific training, placed with precision to guard the entrance.
Equipment and personnel who took the temperature.
For Tar there is no evidence on the characteristics of the instrumentation used (basic precision, measurement distance, response time, operating temperature, storage temperature, humidity, feeding system), since the defense of the Municipality was limited only to which represents having used an infrared thermometer, while the personnel responsible for the survey “were previously trained days before the competition.” The exclusion, therefore, is based solely on the measurement carried out by personnel without specific health training and merely trained in the use of the survey tool, not to mention that the result of the survey for two other candidates has not found confirmation in the posterior. carried out by medical / health personnel in the local emergency room, where they came on time to find out their real state of health.
Complementary test or contest that will be repeated for all candidates
Given the predictability of a situation such as those that occurred, as well as “meritocratic” needs that imply the greatest possible participation of candidates to be selected for public employment, according to the TAR the agency involved should have anticipated the date of a test. complementary, providing the appropriate precautions and measures to guarantee the completion of the entire selection process in accordance with the requirements of impartiality, transparency and equal opportunities. Therefore, the board noted that it is even more feasible in cases where the method of taking the written test includes multiple-choice tests. Otherwise, the test must be repeated for all the candidates who participated in the selection.
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