Probationary Period and Different Duties: Clarifications on Functional Defects in the Probation Agreement

The probationary period is a crucial tool in Italian employment law, allowing both employer and employee to assess the suitability of the working relationship. However, its proper management requires strict compliance with specific rules, particularly concerning the duties assigned during probation.

When an employee is assigned different tasks from those stated in the probation agreement, it can have serious consequences for the validity of a dismissal during probation.

Let’s explore the key principles on the topic.

The Case: Dismissal During the Probationary Period and Assignment to Different Duties

In practice, disputes often arise when a worker is dismissed for failing the probationary period but claims that the duties performed were different from those agreed upon.

For example, if an employee was hired as a deli worker but was assigned only cashier duties during the probationary period, the employer cannot properly assess the employee’s performance in the agreed role.

In such situations, the dismissal for failing probation may be considered unlawful because the employee was not properly evaluated based on the agreed job tasks.

Probation Agreement: The Difference Between Genetic and Functional Defects

One of the key distinctions in employment law is between:

• Genetic defects: These occur when essential elements of the probation agreement are missing (e.g., lack of written form, no specification of duties or duration). A genetic defect leads to the nullity of the probation agreement, meaning the employee is considered hired without probation, and any dismissal must comply with the ordinary dismissal rules.
• Functional defects: These arise when the probation agreement is formally valid but not properly executed. For example, assigning the employee different duties from those agreed upon constitutes a functional defect. The agreement remains valid, but the way probation is carried out is flawed.

Thus, a functional defect does not invalidate the probation agreement itself but can affect the legitimacy of the dismissal.

Consequences of a Functional Defect: Continuation of Probation or Compensation

When a functional defect occurs, the probationary dismissal is not automatically subject to the rules of ordinary dismissal. Instead, the employee is entitled to:

• Continue the probationary period in the originally agreed duties, if still possible;
• Obtain compensation for the harm suffered if continuation is no longer feasible.

In practice, this means that if the employee cannot complete the remaining probationary days performing the correct tasks, the employer may be ordered to pay compensation corresponding to the unearned wages for the uncompleted probation period.

This highlights how important it is for the employer to strictly follow the agreed duties during the probation period to avoid disputes and potential liability.

The Importance of Complying with the Probation Agreement

From an employer’s perspective, it is crucial to:

• Clearly define the duties in the probation agreement;
• Assign the employee exactly those duties during the probationary period;
• Ensure the probation experience genuinely tests the employee’s ability to perform the agreed job.

Failing to comply with these requirements can lead to claims for unlawful dismissal and financial penalties.

Conclusion: What Happens When the Probation Agreement Is Not Respected?

In summary:

• Assigning different duties during the probationary period constitutes a functional defect, not a genetic defect.
• The probation agreement remains valid, but the dismissal based on the probation outcome may be unlawful.
• The employee has the right to continue the probation or to receive compensation for the harm suffered.
• Only genetic defects cause the probation agreement to be null and void, triggering the ordinary rules for dismissals.

Strict compliance with the probation agreement is therefore essential to protect both the employer and the employee and to ensure a fair assessment during the probationary period.

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