ITA 
Published on Sole24Ore - Nt Lavoro - on 23/02/2024
“La plurima e prolungata richiesta di lavoro supplementare e straordinario, con manifesta adesione del lavoratore, determina una novazione contrattuale”.
Regularly asking a part-time employee to work full-time may result in the transformation from part-time employment to a full-time employment for facta concludentia.
Court of Cassation, judgment no. 4350 of 19 February 2024.
In the present case, an employee appealed to the Tribunal claiming the transformation of his part-time employment into a full time one.
The Court of Appeal granted employee’s appeal, highlighting that according to case-law the employment contract transformation for facta concludentia (i.e. parties behaviours) it’s allowed.
Indeed, according to the Court, when the request for overtime is constant, it cannot be considered as occasional additional work.
On the contrary, the employer’s constant request to work overtime determines the contractual novation having to do with working hours, with consequent application of the full-time employment rules, given the modification of the original relationship.
The employer appealed in cassation, arguing that the payment of the overtime work excluded, on his part, the intention to transform the employee’s employment into a full-time employment. Furthermore, the employer argued that just a repeated and constant recourse to overtime work can lead to the transformation of a part time employment into a full time one.
The Court of cassation ruled against the employer. Indeed, according to the Court of cassation, the transformation from part-time to full-time does not require formal and procedural acts.
This is because legislators, on the one hand, encourages the conclusion of full-time employment contracts, and, on the other hand, wanted to give decisive importance to the concrete way in which the employment is carried out in order to identify the treatment due to the employee.
Therefore, to the present case it applies the case-law principle according to which: a formally part-time employment can be transformed into a full-time employment as a result of the repeated recourse to overtime work. So, the animus novandi (i.e. the parties’ voluntary to the transformation) is not relevant once “the constant performance of working hours close to those established for full-time employment” has been proved (Court of cassation no. 17774/2011).