In the executive employment relationship, an extension of the probationary agreement is considered legitimate if agreed upon between the parties before the expiry of the original term, provided that the new term does not exceed the maximum limit provided for by the collective agreement applicable to the sector.

The Court of Appeal of Venice, employment section, in its judgment of 8 March 2025, no. 15, held that the extension of the probationary agreement agreed between the parties before the expiry of the original term is lawful. In the specific case, an executive hired on 5 April 2018 with a three-month probationary period signed an extension, motivated by organisational needs, with the employer before the expiry of the original term. The subsequent dismissal, which took place on 14 November 2018 for failure to pass the probationary period, was therefore deemed valid.

At first instance, the Court of Treviso, by judgment no. 131/2021, had dismissed the application to appeal against the dismissal, qualified as a termination for failure to exceed the probationary period.

The issue concerns the legitimacy, in the context of a managerial employment relationship, of the extension of the probationary period agreed in writing on 8 August 2018, i.e. before the expiry of the original term of three months, set for 21 August 2018.

The Court rejected the executive’s claims, holding that the extension of the probationary period, if agreed before the expiry date and in compliance with the contractual limits, does not constitute a waiver of unavailable rights pursuant to Article 2113 of the Italian Civil Code, since, until the completion of the probationary period, the employee does not accrue any right to stabilisation of the relationship, the right to free withdrawal inherent in the probationary agreement remaining valid.

Following the manager’s appeal, the Venice Court of Appeal upheld the first instance decision, rejecting the appeal. The Court noted that the parties had collectively agreed to a probationary period of six months, through the initial agreement and the subsequent extension, remaining within the maximum limit provided for by the CCNL Dirigenti Industria (Article 2). It also specified that, although the probationary agreement is an agreement to be made at the beginning of the relationship, its duration may be modified subsequently, provided that it remains within the legal or contractual maximum limit. Such an extension does not represent a waiver of unavailable rights within the meaning of Article 2113 of the Civil Code, since the probationary agreement responds to the mutual interest of the parties and the freedom of termination remains until its completion.

The Court, in line with the jurisprudence of legitimacy, reaffirmed that a duration of the probationary agreement longer than that provided for by the collective agreement is superseded pursuant to Article 2077(2) of the Civil Code, insofar as it is less favourable to the employee, unless the extension does not entail a concrete advantage for the latter. However, an extension agreed upon within the maximum limit provided for by collective bargaining does not violate mandatory rules, since that limit exclusively protects the interest of the manager. In the present case, the extension of the probationary period, motivated by supervening organisational needs, took place within the maximum contractual limit and without any dispute as to the legitimacy of the reasons given.

The Court found unfounded the manager’s argument that the extension was the result of a precarious condition, noting that this objection was more suggestive than conclusive. If, in fact, the possibility of extension were denied, the employer could legitimately terminate immediately, without constraint. It follows that the contractual freedom of the parties, pursuant to Article 1322 of the Civil Code, may be exercised within the maximum limit of the probationary period established by law or by collective bargaining.

The firm remains at your disposal for any clarifications.