The Constitutional Court finds that the question of constitutionality raised with reference to Article 18(7)(2) of Law no. 300/1970, as amended by the Fornero reform, is well-founded.
Constitutional Court, 1 April 2021, no. 59
With judgment no. 59 filed on 1 April 2021, the Constitutional Court declared the unconstitutionality of article 18(7)(2) of Law no. 300/1970, as amended by article 1(42)(b) of Law no. 92/2012, in the part where it provides that the judge, when ascertaining that the fact underlying the dismissal for justified objective reasons is manifestly unfounded, “may” and not “must” apply the rules set out in paragraph 4 of the said article 18 (i.e. reinstatement plus damages not exceeding 12 months’ salary).
In the case in point, the Court of Ravenna, asked to rule on a dismissal for justified objective reasons, raised the question of the constitutionality of Article 18 of Law 300/1970 – as amended by the so-called Fornero reform – in so far as it provides, if it is found that the objective justification for dismissal does not exist, for the discretion of the court to choose between the remedy of reinstatement or damages.
In particular, according to the referring judge, the provision of an objectively different protection regime in the case non-existence of the facts in a dismissal for economic reasons and for disciplinary reasons (cases in which the remedy of reinstatement must be applied) is contrary to Articles 3, 24, 41 and 111 of the Italian Constitution.
For the Constitutional Court, the question is well-founded.
The Constitutional Court notes first of all that, in relation to dismissal for justified objective reasons, “the new sanctions system provided for in Article 18 of Law No. 300 of 1970, as amended by Law No. 92 of 2012, prescribes as a rule the payment of damages, ranging from a minimum of twelve to a maximum of twenty-four months“.
And so “reinstatement, with damages of up to a maximum of twelve months’ salary, is limited to the hypothesis of the manifest absence of the facts, which assumes a clear absence of the prerequisites for the legitimacy of the termination and therefore its specious nature (Court of Cassation, employment section, 19 March 2020, no. 7471)“.
This requirement, continues the Constitutional Court, “is strictly related to the prerequisites for legitimacy of dismissal for objective reasons, which is for the employer to prove. These are to be understood as the reasons inherent to the business activity, the organization of work and its regular functioning, the causal link that binds the termination to the organizational choices of the employer and, finally, the impossibility of placing the employee elsewhere (Court of Cassation, Labor Section, 11 November 2019, no. 29102)“.
Therefore, in order to apply the remedy of reinstatement, according to the Constitutional Court “it is sufficient the manifest lack of one of the prerequisites just mentioned (Court of Cassation, labor section, 12 December 2018, no. 32159)” although these assumptions “are all linked to the actual choices of the employer, which the judge is called to assess, without the f appropriateness and adequacy. The examination of the genuineness of the business decision ensures that dismissal is still a last resort and not the result of an irrevocable whim.