The Supreme Court of Cassation has declared that the supply of work agency is not liable for the sufficiency of the condition given by the supply of work utiliser, within the framework of the fixed term supply of work contract signed with the employee.
The so called “Dignity Decree” (Law Decree 87/2018) has re-introduced the requirement of the condition for the validity of fixed term supply of work contracts exceeding 12 months (overall it cannot exceed 24 months). Such a condition, according to the mentioned decree, shall regard the supply of work utiliser only.
As a consequence, if the supply of work contract with the supplied employee exceeds 12 months, the supply of work agency must ask the user to supply the condition to be used in the underlying contract between the employee and the temporary work user.
The causes required by the Dignity Decree are:
- temporary and objective needs, unrelated to the ordinary activity, for other employees’ substitute needs;
- requirements connected to temporary, significant and non-predictable increases of the ordinary activity.
In the case at issue, the supply of work utiliser filed a claim against the supply of work agency, demanding compensation for damages, assuming that the latter was in breach of bona fides and correctness (and fairness). The claimant (the supply of work agency) stated that the plaintiff (the supply of work utiliser) should have informed the agency that the consideration to be provided for in the fixed term supply of work contract, was required to be more definite, i.e. that the consideration given in the particular agreement was not sufficiently specified.
The Court of Milan rejected the claim. The Court of Appeal confirmed the rejection.
The Supreme Court of Cassation has confirmed the two previous pronunciations stating that within the framework of the fixed term supply of work contract, there is no obligation for the supply of work agency to verify the sufficiency of the condition used by the supply of work utilizer.
On the other hand, the supply of work agency is liable if the supply of work contract was lacking any reference to the condition required by mandatory law and/or if the supply of work agency was aware of any irregularity, judicially ascertained from previous supply of work contracts having the same condition.
This is the Supreme Court’s first pronunciation in this regard and we expect it will have a great impact on the future litigation.
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