Superior Duties in Public Employment: Cassation Ordinance No. 16943/2025 and the Rights of Collaborators under Art. 90 TUEL

The landscape of public employment is constantly at the center of debates and jurisprudential clarifications, especially when sensitive issues such as assignment to superior duties and the related right to economic treatment are addressed. Ordinance No. 16943, issued by the Court of Cassation on June 24, 2025, represents a significant intervention that provides important guidance for collaborators hired on a fixed-term basis under Article 90 of Legislative Decree No. 267 of 2000 (Consolidated Act on Local Authorities - TUEL).

This ruling, presided over by Dr. T. L. and authored by Dr. C. D., ruled on an appeal filed by C. (represented by lawyer S. N.) against V. (represented by lawyer P. L.), rejecting the decision of the Court of Appeal of Salerno of June 26, 2020. The core of the issue lies in the balance between the principle of legality governing administrative action and the protection of the worker who, in fact, performs activities at a higher level than their formal qualification.

The Right to Compensation for Superior Duties: A Complex Issue

In the context of public employment, assignment to superior duties is a particularly sensitive issue. Article 52 of Legislative Decree No. 165 of 2001, which governs the organization of work in public administrations, establishes that the employee must be assigned to the duties for which they were hired or to equivalent duties. Assignment to superior duties, if not temporary and not respecting certain conditions, may be considered illegitimate or void. However, jurisprudence has long recognized that, even in the presence of an illegitimate or void assignment, the worker is still entitled to receive the remuneration corresponding to the duties actually performed, based on the principle that prohibits unjust enrichment of the administration.

Ordinance 16943/2025 follows this line, specifying the conditions for recognizing this right for a particular category of workers: local authority collaborators hired on a fixed-term basis ex art. 90 TUEL. These individuals, often employed in support roles for political bodies, may find themselves performing duties that go beyond their formal classification.

Collaborators hired on a fixed-term basis pursuant to art. 90, paragraph 1, TUEL, if assigned to superior duties under art. 52 of Legislative Decree No. 165 of 2001, and notwithstanding the nullity of the assignment, are entitled, for the period of performing such duties predominantly – even in the absence of a superior's order or its illegitimacy, and even if they have been assigned a role for which a specific educational qualification is required and which they lack – to payment of the difference between the initial economic treatment provided for the superior category to which the performed duties correspond and the initial treatment of their classification category, in addition to what they have received for their belonging economic position and, possibly, for seniority-based individual remuneration; this right does not exist in cases where the performance of the aforementioned duties occurred without the authority's knowledge or against its will, or is the result of fraudulent collusion between the employee and a manager, or in any other situation where illegality is found due to conflict with fundamental or general regulations or with basic public principles of the legal system, particularly where the legal system fundamentally prohibits that the service, if rendered without respecting certain rules, be compensated because it was unlawfully performed.

The above summary unequivocally clarifies the Supreme Court's position. Even if the assignment to superior duties is considered void, the collaborator is entitled to the difference in remuneration. This right materializes when the superior duties have been performed predominantly, meaning not episodically or marginally. It is relevant to note how the Cassation specifies that this right exists even in the absence of a formal order from the superior, or if such an order was illegitimate, and even if the collaborator lacked the specific educational qualification required for those duties. This underscores the importance of the principle of effectiveness of the work performed over the mere formality of the administrative act.

Conditions and Limits to the Recognition of the Right

The ruling does not merely recognize the right but also outlines its precise boundaries, while simultaneously protecting the public interest. The right to economic treatment for superior duties is, in fact, not absolute and encounters well-defined limits. Specifically, the Cassation has identified several situations in which this right ceases to exist:

• Without the authority's knowledge or against its will: If the employee has performed superior duties without the administration being aware of it or, worse, against its explicit will, they cannot claim additional compensation. This principle protects the organizational autonomy of the public authority.
• Fraudulent collusion: If the assignment to superior duties is the result of an illicit agreement between the employee and a manager, aimed at circumventing public employment regulations, the right is forfeited. Fraud undermines the legitimacy of the claim at its foundation.
• Situations of fundamental illegality: The right does not exist in any other hypothesis where a situation of illegality is found due to conflict with fundamental or general regulations, or with basic public principles of the legal system. This includes cases where the legal system fundamentally prohibits that the service, if rendered without respecting certain rules, be compensated because it was unlawfully performed. This is the case, for example, of assignments that violate mandatory principles of public selection or incompatibility.

These limits are essential to preserve the transparency, impartiality, and efficient functioning of Public Administration, preventing abusive or fraudulent conduct from generating unjustified economic rights.

Conclusions: A Balance Between Worker Protection and Public Principles

Cassation Ordinance No. 16943/2025 serves as an important reference point for local authority collaborators and for the administrations themselves. On one hand, it reaffirms the principle of protecting the worker who has actually performed superior duties, guaranteeing them fair compensation even in the presence of a formally void assignment. On the other hand, it sets clear and rigorous boundaries, safeguarding the principles of legality, transparency, and meritocracy that must inspire the action of Public Administration. It is a delicate balance that requires attention and a deep understanding of regulations and jurisprudence to be correctly applied. For those working in the public sector, a thorough understanding of these dynamics is crucial for managing employment relationships and preventing litigation.