Abuse of fixed-term contracts for teachers and Ata still unresolved

Fixed-term contracts in schools know no peace. If after a series of rulings, also issued by the Constitutional Court and the Court of Cassation, the sanction in the event of repeated and illegitimate use of fixed-term contracts in teaching is now only economic compensation (since they cannot be converted to permanent contracts), not all the knots have been untied. In the past few days, in fact, EU judges have once again slapped Italy on the repeated use of fixed-term contracts for administrative, technical and auxiliary staff (the so-called Ata personnel).

In fact, labour litigation on this institution has continued substantially uninterrupted even after the pronouncements of the two highest courts. In fact, there are several legal profiles that are still the subject of dispute, and there are also numerous pronouncements by the judges of merit, as will be discussed in detail during a conference scheduled for 29 May in Salerno, organised by the Italian Society for School Law and Legislation. If jurisprudence has by now arrived at consolidated principles, deeming the reiteration of fixed-term contracts beyond 36 months to be illegitimate with regard to replacements on vacant and available posts (replacements up to 31 August), in the case of replacements on non-vacant posts (replacements until the end of teaching activities, i.e. 30 June), the illegitimacy of the reiteration is to be excluded, even if the total duration exceeds 36 months. Unless the employee proves that in the concrete allocation of such substitutions there was an improper use of the power to organise the school service.

In the case of substitutions for support posts, for example, case law holds that proof of the reiteration of contracts until the end of teaching activities for more than 36 months at the same institute and for the same competition class or type of post, in the absence of replacement needs of another teacher, is symptomatic of an abusive use of fixed-term contracts to meet stable and lasting needs to fill the post due to the inadequacy of the staff forecast; in such cases, it is for the administration to prove the actual temporary nature of the supply in the proper use of the power to organise the school service.In the presence, therefore, of such symptomatic indices of abuse in the use of fixed-term contracts, compensation for damages is triggered, which may reach a maximum of 24 months' salary, as recently ruled by the Court of Palermo in favour of a teacher of the Catholic religion, recipient of fixed-term contracts for 24 consecutive years.

Several fronts of litigation are still open for teachers in the case of reiteration for more than 36 months of fixed-term contracts. If, in the case of teachers on ordinary posts, the repetition of contracts beyond the aforementioned limit on 31 August should undoubtedly lead to compensation, in the case of substitutions with a term ending on 30 June, it is necessary that they have been repeated at the same school and the same type of post, while for teachers of the Catholic religion the doubt remains open as to whether or not the extraordinary competition recently held has 'remedied' the abuse, and on this point the Court of Cassation has been called upon to pronounce itself - once again -.

These aspects are by no means secondary, also from an economic point of view, considering that, according to unofficial estimates from trade union sources, every year there are between 10 and 20 thousand precarious professors with more than three years of service behind them in their professorships (and therefore potentially eligible for maxi compensation).