The Constitutional Court has expanded the protection for dismissed workers that the Jobs Act had instead limited. With sentence number 22 of 2024, the Consulta declared the constitutional illegitimacy of article 2, first paragraph, of legislative decree 4 March 2015, n. 23, limited to the word “expressly”, effectively returning to expand the possibility of reinstatement in the workplace and thus eliminating the restrictions introduced by the Jobs Act for all new hires (with the contract with increasing protections introduced by the same decree).
“We are happy that this sentence has come out”, commented Ivana Veronese, confederal secretary of the Uil, specifying that “this sentence is a step forward in the redefinition and also in the rebalancing of the Jobs Act”. The CISL is also in favor of the ruling: «We believe it is acceptable as it extends the protection of male and female workers also to cases of nullity not expressly provided for by the law», underlines the confederal secretary Mattia Pirulli. And he says he is convinced that it can have “a positive impact on the operational level without affecting the founding principles of the contract with increasing protections which have too often been the subject of criticism of the Jobs Act”. However, the CGIL reserves the right to comment in detail, as it still considers it a positive ruling, even if it contests the entire legislative decree no. 23.
The article on which the Council expressed its opinion provides that the judge, with the ruling with which he declares the dismissal null and void because it is discriminatory, or because it is attributable to other cases of nullity expressly provided for by law, «orders the employer, entrepreneur or non-entrepreneur, the reinstatement of the worker in the workplace, regardless of the reason formally given”. According to the interpretation of the Court, however, this provision «was considered illegitimate in the part in which, in recognizing the reinstatement protection, in cases of nullity provided for by law, of the dismissal of workers hired with contracts with increasing protections (therefore starting from 7 March 2015), limited it to nullities “expressly” sanctioned”.
This limitation had been contested by the Court of Cassation which had then turned to the Consulta. According to the Supreme Court, the 2015 legislative decree had violated article 76 of the Constitution which regulates the implementation of enabling laws. The Jobs Act was passed according to this procedure, which initially provides for an enabling law approved by Parliament which indicates the principles of the reform, and subsequently for one or more legislative decrees issued by the government which implement the same principles. According to the Court of Cassation, in the principles of the enabling law it is said that the reform should have provided for the protection of reinstatement in the workplace in all cases of “null dismissals”, without distinction. While the government, with Legislative Decree 23, had limited this protection only to null dismissals “expressly” provided for by law, therefore abusing the delegation, and not complying with Parliament’s indications.
«By providing reinstatement protection only in cases of express nullity», the judges of the Constitutional Court specify, the Jobs Act «has left the “excluded” cases without specific regulation, i.e. those of null dismissals, yes, due to violation of mandatory rules, but devoid of the express sanction of nullity, thus dictating incomplete and inconsistent regulations with respect to the design of the delegating legislator”