Lavoratori in prova

Da PMI del 13 dicembre 2017
Contratto, disciplina, recesso e gestione del rapporto: focus sul patto di prova tra azienda e neo-dipendente, nell’ambito di qualsiasi lavoro subordinato.

Nella stipula del contratto di lavoro, azienda e neo-assunto possono prevedere un periodo di prova (patto di prova) per verificare la convenienza reciproca alla prosecuzione del rapporto: il datore di lavoro valuta l’idoneità professionale del lavoratore a svolgere le mansioni specificate nel contratto, mentre il lavoratore accerta in concreto la propria attitudine allo specifico impiego.

=> Retribuzione lavoro nel periodo di prova

Il periodo di prova può essere pattuito nell’ambito di qualsiasi rapporto di lavoro subordinato: tempo determinato, inserimento e apprendistato. Inoltre, può essere apposto ai contratti di lavoro stipulati con domestici, dirigenti, giornalisti e lavoratori invalidi assunti con il sistema del collocamento obbligatorio (quote di riserva per categorie protette).

Per legge, la durata massima della prova è sei mesi per tutti i lavoratori (art. 10 legge n. 604/1966), tre mesi per gli impiegati non aventi funzioni direttive (art. R.D.L n. 1825/1924). I contratti collettivi, poi, determinano la durata del periodo di prova entro i limiti di legge distinguendo in alcuni casi tra operai ed impiegati, prevedendo in genere periodi inferiori rispetto ai limiti legali e stabilendo il criterio di calcolo dei giorni. Fermo restando il limite legale, pertanto, nel contratto individuale i termini previsti dalla contrattazione collettiva possono essere ridotti o aumentati.

Quest’ultima ipotesi, solo se la particolare complessità delle mansioni affidate al lavoratore renda necessario, nell’interesse di entrambe le parti, un periodo più lungo di quello ritenuto normalmente congruo dalla contrattazione collettiva (Cass. 19 giugno 2000, n. 8295): il relativo onere probatorio ricade naturalmente sul datore di lavoro, a cui la maggiore durata del periodo di prova attribuisce una più ampia facoltà di licenziamento per mancato superamento del periodo stesso.

In alcuni casi la contrattazione collettiva esclude espressamente la possibilità di prorogare la durata inizialmente fissata del periodo di prova. In altri casi tale possibilità è prevista, ma sempre nei limiti di durata massima stabiliti dalla legge. In mancanza di tale previsione non è possibile pattuire la proroga del contratto individuale, perché ciò costituirebbe clausola svantaggiosa per il lavoratore.

Alcuni dei CCNL prevedono ipotesi di sospensione del periodo di prova al sopraggiungere di determinati eventi: gravidanza, malattia e infortunio. La Giurisprudenza maggioritaria afferma che devono escludersi dal totale dei giorni di prova le assenze per malattia o infortuni, mentre devono essere ricomprese le assenze che rientrano nello svolgimento fisiologico del rapporto, come ad esempio ferie, festività e riposi settimanali, nonché i periodi di chiusura dell’azienda per sospensione dell’attività.

=> Patto di prova: forma scritta necessaria

In mancanza di una precisa disposizione legale, la Giurisprudenza ritiene che il patto di prova debba essere siglato contestualmente alla stipula del contratto di lavoro e, comunque, prima dell’esecuzione dello stesso. Se il patto è stipulato successivamente si considera nullo ed il rapporto assume immediatamente carattere definitivo.

Il patto di prova deve essere scritto e sottoscritto da entrambe le parti. In caso contrario è nullo, viene cioè considerato come non apposto e determina automatica conversione del rapporto in rapporto definitivo.

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