After the last competition for school managers, also due to the lowering of the average age for access to the competition, there were many requests for a temporary job, often rejected by the regional school offices.
An interesting judgment is that of the Court of Ravenna, acting as Labor Judge, which, by order of December 2021 (Text at the bottom), recognized the right of a newly employed school manager to temporarily move to a school in the province where her husband works, ie close to the family residence, to help the child under 3 years of age together. this is the first judgment in that sense in favor of a school principal, however, the provision in question clarifies many aspects that are often disputed.
The magistrate thought that Art. 42 bis Legislative Decree 151/01 also urgently, due to the need for the situation and the need for a direct protection of fundamental rights, to all public employees regardless of their contractual status and therefore to all school staff and therefore also to the school manager.
The art. 42 to the Consolidated Law on Legislative Provisions op Protection and support of the mother and Paternity, or Legislation 151/2001 states: “The parent with minor children up to three years of age employed by public administrations in Article 1, Section 2, of the Legislative Decree of 30 March 2001, No. 165, and subsequent amendments may apply to Request, also in a factional manner and for a total term of not more than three years, to be assigned to a job in the same province or region in which the other parent is doing his / her work activity, subject to the existence of a vacant and available post “with a corresponding salary position and subject to the consent of the origin and destination administrations. All dissent must be motivated and limited to exceptional cases or needs. The consent or dissent must be notified to the interested party within thirty days of the request”.
In any case, the question in question is without prejudice to any administrative discretion as the words “may” and not “must” for the purpose of the dissent of the administration with the request of the employee.
In more recent times, the legislature has with Art. 14 Section 7 of L. 124/2015, made an important change to the disposition of Art. 42 to Legislative Decree 151/2001, which introduces the provision for which all dissent to the transfer request must be motivated and limited to exceptional cases or needs, so that the protection of the constitutionally guaranteed values inherent in the family continues. reinforced. Reference to the care of offspring at an early age.
If, in order to call for the application of the institution, certain conditions must exist for the legitimacy of the application, such as the existence of vacancies and vacancies in the province or region where the other parent does his / her work, it is also right that any dissent of the administration must be adequately motivated and communicated within thirty days of the request.
Disagreement is therefore only legitimate if, without prejudice to the necessary conditions for the request, exceptional cases or needs arise which, according to constant case law, do not coincide with the simple discovery of the staff or with the so-called “three-year”. Bond “.
The ruling of the Ravenna court is very interesting because it clearly examines the institution also with reference to the constitutional principles it implements and the legislation governing the so-called “three-year bond”.
Legislation is dictated as a function of the protection of the family, the mother tongue and the childhood, with clear reference toArt. 31 of the Constitution which says: “[La Repubblica] It protects motherhood, childhood and youth, promotes the institutions needed for this purpose. “
Also because “the economic consequences of a family infection in the first years of a child’s life are quite intuitive, consequences that are also not accidentally considered in the charter in the first section of the article. 31, according to which “The Republic facilitates the formation of the family and the fulfillment of related tasks with economic measures and other provisions, with special reference to large families” (and this is also evidently affected by family reunification celebrated by Art. 42 -BIS). “
The regulation in question also examines the need for the state, and therefore for local administrations, to “create social and economic conditions in order to favor (and not discourage) births”, also through the use of institutions that rely on implementation. Constitutional values and regulations that can not be frustrated if not by repeating exceptional cases or needs, so by referring to overwhelming interest in values of equal rank.
In this regard, the courts recall the irreplaceable nature of the employee in a specific place due to its specific characteristics or, in rare cases, a lack of staff such as the Office of Origin putting a serious crisis, clarifying that the normal organization and to compensate for a shortage of staff, can not be assimilated to an extraordinary need by being a part of the normal activity of an administration.
Therefore, in balancing interests between the parties, it will be necessary to take into account what the real needs are and whether, besides cases of normal administration, there are such cases, precisely characterized by extraordinary nature, only on appeal. of which the administration could refuse consent.
In this context, it is clear that the “three-year constraint”, which remains on the subject of contracts related to school management, can in no way be such a claim that the application of the institution concerned is frustrating, as it is generally ass. a very general rule about the duration of orders.
Recently, there has been increasing openness to the applicability of the institution in question, in the sense that some regional school offices are beginning to reconsider the existence of the preconditions of this kind. 42 to also apply to those specified as exceptional cases Mobilitythus recognizing at least the full application of the institution of school management.
In addition, the legislation applies to the public employee without restriction and therefore, regardless of the contractual classification of the public employee, without prejudice to the existence of the requirements, the possible exceptional needs that the administration has the burden to show for the ‘Motivation to correctly determine a possible rejection of the request for constitutional significance.