On the issue relating to the criteria for assigning teachers to classes or complexes (both in the same municipality and in other municipalities) we have repeatedly expressed our opinion, accompanying it with precise legal and contractual provisions – click here to download –
Unfortunately, we must note, and at the beginning of the school year there have been many cases reported, that often some school managers believe that the power conferred on them (when ever? And under what law?) Is not binding.
To this end, we want to report an interesting article on the subject of Avv. Francesco Orecchioni commenting on the sentence of the Supreme Court, section work, no. 11548/2020.
Assigning teachers to classes. Violation of the didactic continuity criterion. Injury to a subjective right of the teacher. Need. Exclusion.
Consultation of collegial bodies. Compliance with the criteria formulated by them. Need. Subsistence.
Exclusive management power by the Headmaster pursuant to art. 4 Legislative Decree 165/2001. Exclusion.
Assigning teachers to classes without respecting the procedural rules. Illegitimacy. Violation of the obligation of fairness and good faith. Subsistence
“The sentence in question intervenes on a very widespread problem, as it is generally believed that the Headmaster has an unquestionable power in assigning teachers to classes, as manager of the school” with the powers of the private employer “
This often leads to discontent in schools, as these are not only unshared choices, but sometimes also disrespectful of the criterion of didactic continuity or length of service, if not of a retaliatory nature.
Pursuant to art. 7, paragraph 2, lett. b) Legislative Decree no. 297/1994, the College of Teachers “formulates proposals (…) for training, the composition of classes and the assignment of teachers to them”.
Similarly, Article 10, paragraph 4 of Legislative Decree. Cit. provides that the school board indicates “the general criteria relating to the formation of classes, the assignment to them of individual teachers”.
At the same time, art. 396, paragraph 2, lett. d) Legislative Decree no. 297/1994 establishes that the managerial staff is responsible for “proceeding with the formation of the classes, assigning them to the individual teachers (…) on the basis of the general criteria established by the club or school council and the proposals of the teaching staff”.
These provisions in many schools have fallen into disuse, considering on the contrary some School Managers to have the widest discretion in the use of teachers and to be able to move them at will from one section to another, if not from one address to another and – more recently – from “classroom” teaching to “empowerment”.
The jurisprudence has generally shown itself to be very lukewarm in the face of the complaints made several times by teachers, who considered themselves unfairly penalized by hardly acceptable choices, perhaps in fear of fueling a vast litigation in subiecta materia and still believing that the failure to assign to this or that class was not a suitable act to violate a real right of teachers.
In the past, administrative jurisprudence (to which jurisdiction over disputes relating to public employment was devolved) had censured the failure to comply with the requirements established by the aforementioned legislation, believing that the Dean or the Didactic Director had the burden of complying with the criteria established by the collegial bodies or at least to adequately justify the reasons for which it intended to depart from it.
With the new division of jurisdiction, the Labor Judge – careful to identify in the substantive petitum “the good of life” that is assumed to be violated – has generally considered the absence of a real right on the part of teachers, in order to respect of the criteria established by the collegial bodies.
This has witnessed – paradoxically – a weakening of the protection of the worker, even in the event of an open violation of the law.
Doctrine and jurisprudence thus questioned what were the remedies available in the civil law in case of violation of procedural or regulatory rules by the employer in the field of contracted public employment, reaching the shared conclusion that it is necessary to refer to the application of general rules of fairness and good faith.
To remain in the scholastic field, the Supreme Court had already in the past censured the attribution of “instrumental functions” without respecting the choices of the teaching staff, accepting the appeal of a teacher who had presented an application for the assignment of this function, without however that it had demonstrated that it was entitled to this assignment.
The Court of legitimacy had established the following principle of law: “In the contracted public employment relationship, the employer Administration is required to comply with the obligation of correctness and good faith, which can also be specified in procedural rules set by the bargaining collective both sectoral and supplementary, such as in this case the obligation to motivate the choice of the faculty as to the assignment of objective functions to public school teachers, an obligation not satisfied by the mere outcome of a secret vote; the violation of this obligation can be reported by the employee without also burdening him with the burden of proving that the decisions of the administration, if they had been respectful of these procedural rules, would have been in his favor “(Court of Cassation, Work Section, 15 July 2011, n.15618 – on this site, with a note from the writer
The order in question, precisely in the light of the preceding jurisprudential reported, therefore affirmed the principle according to which the Headmaster – even within the scope of his autonomous staff management powers is required to respect the competences of the collegial bodies. “
Unfortunately, we must note that we often receive reports from teachers regarding both the release in the preparatory procedure for the adoption of the assignment measures to classes and complexes, and in relation to the failure to comply with the provisions of the CCNL and the CCNI relating to mobility of the school staff, for which we underline once again the importance of the role of the collegial bodies of the school and of the school bargaining itself in defining the rules for deciding how the assignment of teachers to classes and school complexes should take place , both within the municipality where the school headquarters is located and in complexes located in other municipalities.