With appeal, a support teacher acted to obtain the ascertainment of the illegitimacy of the term affixed to the various supply contracts stipulated on the actual staff, requesting the conversion of the permanent employment relationship and the payment of salary differences or, alternatively, compensation for damages suffered, as well as salary differences accrued as a result of professional progression, not recognized by the PA for fixed-term teachers. In the various levels of judgment she obtained a relief which the Ministry opposed. The Civil Cassation Ord. Section Law No. 176/2023.
The difference between de facto and legal staff
The workforce by right, the judges point out, it consists of teaching posts and professorships determined provisionally on the basis of the number of students enrolled in each year of the course as well as the forecast for transition to the following year. In particular, the number of enrolled students, in relation to their allocation in classes, to the timetables relating to their fields of study, to the decrees constituting the professorship for each teaching subject, to the organizational teaching modules, and finally processed according to specific algorithms established from the norm, determines the so-called organic law.
The actual workforcethe Court continues to state, corresponding to the real situationvery often diverges from that of law a due to several largely unavoidable factors, considering that the forecasts are made during the previous year when the exact number of pupils who will progress to the following year is not known and that further factors that may occur cannot be taken into account subsequently, such as transfers of pupils from one school to another, new enrollments and, in the case of pupils with disabilities, new certifications pursuant to law n. 104 of 1992 or requests for support teachers in derogation of the number fixed in the staff of diritto.
As regards the posts in derogation on support, it should be noted that these instead represent the most significant share of the actual workforce. Furthermore, this takes into account needs that can only be ascertained and verified in relation to a specific school year and cannot be subject to automatic drag-and-drop from one year to the next.
The particular impact on the de facto staff of support teachers is due to the high number of exceptional posts connected to
this category, In fact, the regional school offices can establish places in derogation in presence in the classes of students with serious disabilities for the entire weekly service hours of the specialized teacher.
Even for support teachers, the legislation on the matter of contrasting the abuse of fixed-term contracts must be applied
From the above legislation, concludes the Cassation, it is clear that support teachers enjoy a slightly different legal regime from ordinary teachers, but that the substantial difference, as regards the assignment on de facto staff, pertains to the possibility for the PA to hire , with fixed-term contracts, support teachers as an exception to the pupil-teacher ratio established pursuant to the law, in order to establish additional hours of support to protect the disabled who find themselves in particularly serious conditions. The latter circumstance, even if it clarifies the reason why the posts on the de facto staff are very frequent in the support teachers sector, does not justify, however, the exclusion of the application of the principles elaborated by Cass., Sez. L, no. 22552 of 7 November 2016.
In essence, stabilization can be used in the following cases:
- “in the case of concrete assignment of the position”;
- “in the hypothesis of the certainty of benefiting, in certain and close times, of a privileged access to public employment, in the time included up to the total scrolling of the rankings until exhaustion, according to the provisions of paragraph 109 of art. 1 of the law n. 107 of 205” (paragraph 89 of the judgment);
- in the stabilization”ensured to teachers through previous competitive or selective instruments other than those contained in the aforementioned law 107/2015” (paragraph 90 of the judgment).
When one does not fall within this category, compensation for damages is a suitable measure to satisfy the just claims of workers who complain about the abuse of fixed-term contracts, especially in the school sector where precariousness continues to be the norm.