10 settembre 2019 – Con l’ordinanza n. 21683 del 23 agosto 2019 la Corte di Cassazione ha ribadito che, in caso di contratto a tempo determinato, qualora venisse omessa la valutazione dei rischi per la sicurezza e la salute dei lavoratori da parte del datore di lavoro, il termine del contratto stesso si considera come non apposto. Ciò significa che il contratto di lavoro stipulato formalmente a tempo determinato deve essere invece considerato a tempo indeterminato ai sensi degli artt. 1339 e 1419, comma 2, del Codice Civile. Nel caso specifico (con l’ordinanza n. 21683/2019), i Giudici del Supremo Collegio hanno accolto il ricorso presentato da una lavoratrice presso l’Agenzia nazionale di stampa ANSA, con contratti a termine successivi, contro la sentenza di secondo grado della Corte di Appello di Roma (n. 3451/2015).
Nelle motivazioni a sostegno della decisione, la Corte di Cassazione ha richiamato l’art. 3 del d.lgs. n. 368/2001 a norma del quale “è vietato stipulare contratti di lavoro subordinato a termine per le imprese che non abbiano effettuato la valutazione dei rischi per la sicurezza e la salute dei lavoratori”.
La ratio della norma, secondo i Giudici della Corte di Cassazione è “la più intensa protezione dei lavoratori rispetto ai quali la flessibilità d’impiego riduce la familiarità con l’ambiente e gli strumenti di lavoro”.
Pertanto i Supremi Giudici hanno aderito al prevalente orientamento giurisprudenziale secondo il quale: “Ove il datore di lavoro non provi di aver provveduto alla valutazione dei rischi prima della stipulazione del contratto, la clausola di apposizione del termine è nulla e il contratto di lavoro si considera a tempo indeterminato”.
Nell’ordinanza in commento è stato altresì precisato che incombe sul datore di lavoro che intenda sottrarsi alle conseguenze della violazione della richiamata disposizione, l’onere di provare di aver effettuato la valutazione dei rischi.
Per approfondire consulta il link Cassazione_ordinanza_23_agosto_2019_n_21683
Per informazioni sull’articolo scrivere a sicurezza@anmil.it
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