This study intends to clarify the crucial aspects of a very delicate and recurring theme in the management of teaching staff and ATA holders of a short and occasional temporary post. How to proceed in the event of an employee’s sick leave? What are the temporal limits of the behavior? How to proceed if the maximum number of recognized absences is reached?
Let us therefore focus on the legal and salary management of sick leave, the so-called period of behavior, which can be used by school staff with a short and occasional temporary substitute contract.
The reference standard.
The reference legislation is contained in art. 19 of the National Collective Labor Agreement of the School Sector 2006 – 2009: “Within the limits of the duration of the employment relationship, the provisions on holidays, permits and absences established by this contract for staff hired for an indefinite period, with the clarifications referred to in the following paragraphs, apply to personnel hired on a fixed-term basis.“.
Article 19 continues in paragraph 10 with: “In cases of absence from the service due to illness of the teaching staff and ATA, hired with a fixed-term contract stipulated by the school director, art. 5 of the DL 12 September 1983, n. 463, converted with modifications by the law 11 November 1983, n. 638. In any case, this staff has the right, within the limits of the duration of the contract itself, to keep the place for a period not exceeding 30 days per year, paid at 50%“.
The contract therefore establishes the period of involvement in a maximum of 30 days, all paid at 50%.
Annuity of the calculation.
As expressly indicated, the law indicates that the 30-day limit does not concern the single employment contract nor does it indicate a need for proportionality to the period deducted in the contract.
Therefore, the 30 days must be calculated per school year, taking into account all the absences due to illness also relating to previous short and occasional substitutions obtained by the employee during the same year, albeit in different educational institutions.
Consequences of exceeding.
In the event that the employee reaches the limit of 30 days of absence due to illness, the headmaster proceeds ipso done to the termination of the fixed-term employment contract, by means of a specific managerial decision, placed in the records of the school and transmitted to the schools for information. in whose rankings the employee is enrolled, with consequent termination of the employment contract at SIDI.
In this regard, we point out the lacunae of the sectorial legislation, which does not explicitly provide for the further consequences for the worker but which can be peacefully identified by analogy, on the basis of the overall ratio legis: the employee will not be able to accept any other replacement from any other educational institution for the remainder of the current school year.
The underlying reason for the impossibility is the lack of the minimum necessary and prerequisite protections for the stipulation of a further employment contract: the impossibility of taking advantage of sick leave.
However, an explicit clarification by the Ministry of Education would be necessary on this point.
No deletion from the rankings.
Attention is drawn to a further point, which would require ministerial clarifications.
Given that art. 19 paragraph 10 establishes the annual 30 days of employment, the employee can therefore accept substitute assignments in the following school year.
It follows therefore that the teacher / ATA can, indeed must, remain in the rankings in which he is enrolled, therefore the school cannot proceed with any deletion from it.
Effects on the service.
The art. 19 paragraph 11 specifies that the periods of partially paid absence referred to in the previous paragraph 10 do not interrupt the accrual of seniority for all purposes. Therefore these periods will be fully effective, in total equality with the service provided.
All that has been clarified so far is also valid for the staff hired as “organic covid”, given their position as short and occasional substitutes.
Attached, editable format of the school manager’s determination of termination of the employment contract for exceeding the period of employment.