Fixed-Term Hiring and Substitutions: Commentary on Judgment No. 10391 of 2024

Judgment No. 10391 of April 17, 2024, represents an important clarification on fixed-term employment contracts, particularly concerning fixed-term hires for replacement needs. This order, issued by the Court of Cassation, is part of a complex legal framework and offers food for thought on personnel management within companies.

The Regulatory Context

The regime for fixed-term employees is governed by Legislative Decree No. 368 of 2001. In particular, Article 1 establishes that an employee may be hired for replacement reasons, but questions arise regarding the need to assign the employee to the same tasks or the same job position as the absent employee. The Court, with this judgment, has clarified that it is not essential to maintain these constraints, provided that the substitution is functional to the company's needs.

• The fixed-term employee may not perform the same tasks as the absent employee.
• The substitution must be justified by company necessity.
• Substitution through chain movements is legitimate, provided there is a correlation between the absence and the hiring.

Commentary on the Judgment's Headnote

Fixed-term hiring for replacement needs - Assignment to the same tasks or the same position as the absent employee - Necessity - Exclusion - Causal correlation between the activity of the substitute and that of the replaced employee - Indispensability - Subsequent substitutions through chain movements - Legitimacy - Limits. Regarding fixed-term employment contracts, under the regime of Article 1 of Legislative Decree No. 368 of 2001, an employee hired on a fixed-term basis for replacement reasons of an absent worker may also not be assigned to the same tasks or the same position as the replaced worker, because the substitution must be functional to the company's needs. Consequently, the employer - in exercising their organizational power - has the option to utilize personnel, including the fixed-term employee hired for replacement reasons, through internal transfers deemed most appropriate for optimal company performance, and therefore, also through a series of subsequent substitutions via chain movements. However, the correlation between the absence and the fixed-term hiring must be maintained, as the latter must be genuinely determined by the necessity created in the company as a result of the former.

This headnote clarifies that the employer has broad organizational power, allowing for flexible management of human resources, but also emphasizes the need for a direct link between the employee's absence and the fixed-term hiring. This aspect is crucial to prevent abuses and ensure the protection of workers' rights.

Conclusions

Judgment No. 10391 of 2024 offers an important opportunity for reflection for companies and industry professionals. It clarifies that, while flexibility in managing fixed-term hires is fundamental, it is equally essential to maintain a correlation between the reason for absence and the need for a replacement. This judgment not only provides operational guidance to businesses but also represents a step towards protecting workers, ensuring that fixed-term contracts do not become a tool for exploitation.