ROME. The regulation of collective dismissals provided for by the Jobs Act is not illegitimate. This was confirmed by the Constitutional Court which, with a sentence filed today, declared the questions raised in reference to articles 3 (first paragraph) and 10 of the legislative decree “unfounded”. 23/2015, which in implementation of the Jobs Act (law 183/2014) introduced the permanent employment contract with increasing protections in relation to length of service.
The Court of Appeal of Naples had criticized, in particular, the regulation of collective dismissals with regard to the consequences of the violation of the criteria for choosing redundant workers. Indemnity protection has been provided, compensating for the damage suffered by the worker, but no longer reinstatement protection in the workplace, in symmetry with the hypothesis of dismissal for justified objective reasons.
The enabling law had, in fact, excluded, for the “economic dismissals” of workers hired with contracts with increasing protections (therefore starting from 7 March 2015), the possibility of the worker’s reinstatement in the workplace, and had provided for compensation economic, limiting the right to reinstatement to null and discriminatory dismissals and to specific cases of unjustified disciplinary dismissal. The Court, also considering the parliamentary work and the overall purpose pursued by the Jobs Act, held that the reference contained in the delegation law to “economic layoffs” concerned both individual ones for justified objective reasons and collective ones. It therefore ruled out that, from this point of view, there had been – as the Court of Appeal assumed – a violation of the directive criteria of the delegation law. Furthermore, the Court deemed «the complaint of violation of the principle of equality also unfounded, comparing “elderly” workers (those hired until 7 March 2015), who retain the more favorable previous discipline and therefore reinstatement in the workplace, and “young” workers (those hired after that date), to whom the new regulations of the Jobs Act apply. The temporal reference to the date of hiring makes it possible to differentiate the situations: the new regulations on dismissals are aimed at encouraging employment and overcome precariousness and is therefore only foreseen for “young” workers. The legislator was not required, on a constitutional level, to make this new regulation applicable also to those who were already in service. Finally, the Court deemed the indemnity protection “not inadequate”. Currently, a worker illegitimately dismissed as a result of a staff reduction procedure is entitled to an indemnity, not subject to social security contributions, of an amount equal to the number of monthly payments of the last reference salary for the calculation of severance pay, determined by the judge based on the criteria indicated by this Court in sentence no. 194 of 2018, in any case not less than six and not more than thirty-six monthly payments.