Former justice of the peace awarded paid leave, severance pay and compensation

The justice of the peace who has already left office, in service during the period 2002-2019, must be received payment of holiday pay, welfare and social security protection, severance pay, a contribution regime similar to that of magistrates and, lastly, compensation for the illegitimate repetition of fixed-term employment relationships. These are the conclusions of the Council of State, seventh section, sentence 2716, which upheld the appeal of a woman, a justice of the peace in various judicial offices for 17 years, against sentence 15797 of the Lazio Regional Administrative Court, which had rejected her request for recognition of apublic employment relationship with the Ministry of Justice.

For the Council of State, contradictory elements emerge in the arguments of the Tar, also in the light of the case law of the EU Court (judgment of 7 April 2022, C-236/20): first, it states that the justice of the peace can be qualified as a temporary worker, as regards the conditions of employment, and that he is entitled to benefit from the treatment due to the professional magistrate with reference to specific and individual aspects of the relationship, and then clearly states that the employment conditions of the honorary magistrate are completely different and have a necessarily different regime compared to the career magistrate.

The Council of State's decision then recalls that the exclusion of justices of the peace from any right to paid leave and from any form of social security and welfare protection is, "in the light of clause 4 of the framework agreement on fixed-term work or clause 4 of the framework agreement on part-time work, inadmissible - the appellant must be granted the right to paid leave for each and every year in which she has performed the duties of justice of the peace, that is, from 3 July 2002 to 31 July 2019". Where, moreover, the economic parameter to which the remuneration of the leave is to be anchored is that of the magistrate capable of performing the judicial duties ascribed to the justice of the peace.

With regard to the compensation for the excessive repetition of term contracts, the judgment notes first of all that the stabilisation of 2017 is irrelevant, given that the former justice of the peace did not apply for confirmation in office. And in any case, 'compensation protection is not a substitute for stabilisation, but an autonomous and dutiful sanction for the wrongful act committed by the public employer'. The amount is then equitably determined at 14 months' salary, especially in view of the long service rendered.