The Milan Court of Appeal, with judgment no. 2116 of 22 January 2019, reversing the judgment of the court of first instance no. 483/2017 of the Court of Monza, ruled on the validity of the trial period annexed to the employment contract and on the legitimacy of the dismissal served on grounds of failure to successfully complete the trial period.
The Facts
A manager applied to the Court of Monza seeking a declaration of invalidity of the trial period annexed to his employment contract and therefore of his subsequent dismissal, and claiming payment by his former employer of the compensation in lieu of notice and the supplementary allowance.
In the opinion of the Court, the trial period was invalid because the indication of “Sales Director” did not fulfil the requirement of specificity of job duties according to the law, to the point that the manager was unable to understand the elements of the trial period and of the related job duties.
The Court of first instance also remarked that the higher the role of the worker, that is, the more intellectual and not merely executive the job is, the clearer and more specific the indication of the duties must be.
Furthermore, according to the Court of Monza, in the case at hand, a reference to the collective labour agreements cannot make up for the non-specification of the job duties in the individual employment contract, because the former only “contains a mere list of personnel with managerial duties.”
In this context, the court of first instance also found that, for the purpose of the legitimacy of the trial period, the circumstance that the petitioner had previously performed the same duties was irrelevant.
The Court therefore granted the claims of the manager with judgment no. 483/2017. Against the judgment of the Court of first instance, the losing party filed an appeal, asking (i) ascertainment of the validity of the trial period; (ii) declaration of the legitimacy of the dismissal and, as an effect thereof, reversal of the judgment of the Court of first instance including the part in which it condemned the company to pay to the manager the compensation in lieu of notice (in addition to the related welfare contribution) and of the supplementary allowance.
The decision of the Court of Appeal
The Milan Court of Appeal granted the appeal of the employer company, totally reversing the judgment of the court of first instance.
More specifically, the Court of Appeal ruled that, especially in case of intellectual and not merely manual work, the duties should not necessarily be indicated in detail, as it is sufficient that these can be determined based on the wording used in the contract.
According to the Court of Appeal, the employment of a worker as Manager in accordance with the National Collective Labour Agreement for Industrial Managers, and with job title “Sales Director“, were sufficiently clear and specific for the worker to understand the type of duties assigned to him by the company.
Contrary to what had been maintained by the Court of Monza, moreover, the Court of Appeal remarked that the reference to the job duties within the context of the trial period made to the declarations of the National Collective Labour Agreement for the sector is perfectly sufficient to identify with certainty the duties assigned to the respondent.
On this point in fact, the Court of Appeal remarked that, according to the National Collective Labour Agreement for Industrial Managers,
- manager is a worker “who holds in the company a position characterized by a high level of professionalism, autonomy and decisional power and who performs his/her duties in order to promote, coordinate and manage the achievement of the objectives of the company” and
- specifies that this definition applies to “managers, co-managers and those who have full directive powers and who are in charge of important services or offices (…).”
Moreover, the Court of Appeal remarked that in the negotiations preceding employment the company had clarified to the worker that the position proposed was that of “Sales Director“, to develop the company sales policy, as the company had yet to define “its own strategy in terms of search for partners and sale strategies by product types.”
In the general evaluation of the Milan Court of Appeal, relevance has been given also to the fact that the manager had already worked as Sales Director with other companies, and therefore it was highly unlikely that he had not clearly understood the duties assigned to him during the trial period.
Therefore, according to the Milan Court of Appeal, the position of “Sales Director” associated, on the one hand, with the position of “manager” as defined under the National Collective Labour Agreement and, on the other hand, with the type of activities performed, quite precisely defined the duties to be performed during the trial period. Those duties are also consistent with those indicated in the contract, given that, as emerged from the pre-trial assessments, the worker had never complained during the almost 6 months of work about the fact that he had not performed the duties of a “Sales Director“.
The Milan Court of Appeal thus found the trial period fully valid and therefore condemned the manager to return to the company what he had received on the basis of the judgement of the Court of first instance, and to pay the cost of the appeal proceedings.
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