Prepared by Francesca Tironi, Alessia Sveva Spadoni and Sara Tanieli
On February 24th, 2021, Italian Constitutional Court, through its Press Office, announced that it had declared grounded, due to the violation of the principle of equality set forth in article 3 of the Italian Constitution, the matter of constitutional legitimacy of article 18, paragraph 7, Law no. 300/70 (Workers’ Statute) and subsequent amendments and additions raised by the Court of Ravenna with its decree no. R.G. 964/2019 of February 7th, 2020.
The Court of Ravenna – hearing a case brought by a company that lost the summary phase of the so called “Fornero” proceedings instituted by a worker who has been dismissed three times within the last few months, one of which for objective reasons – in order to be able to pronounce on the case, paused on the current version of the aforementioned provision with regard to the part that provides for the judge – when it has ascertained the manifest lack of the fact grounding the dismissal for objective reasons – the possibility of choosing between ordering the reinstatement of the worker or the economic compensation instead of imposing the reinstatement (mitigated compared to the ones provided for in the first three paragraphs of the aforementioned article 18, Law Decree no. 300/70), as provided for by article 18, paragraph 4, Law no. 300/70 in the event that the inexistence of the fact grounding both the dismissal for justified subjective reason and dismissal for just cause is ascertained.
In this regard, the judges have considered that the legal provision at issue is respectively in contrast:
a) with article 3, paragraph 1, of the Italian Constitution, compared with article 18, paragraph 4, Law no. 300/70 and subsequent amendments and additions;
b) with article 41, paragraph 1, of the Italian Constitution;
c) with article 24 of the Italian Constitution;
d) with article 111, paragraph 2, of the Italian Constitution.
With respect to article 3 of the Italian Constitution, the complaint of the Judges concern what follows: “situations that are completely identical, i.e. dismissal grounded on just cause and dismissal grounded on justified objective reason, in relation to which the unfoundedness has been ascertained in court (even the manifest groundlessness of the fact grounding the dismissal for objective reasons), would be treated in an unjustifiably different way (in terms of protection)” and “this difference in protection would be determined by the mere, unquestionable and free choice of the employer to qualify in one way or another the act of dismissal from the same adopted and then proved to be entirely specious”. With respect to this last regard it has to be reminded that the judge cannot investigate the business decision to proceed with a dismissal grounded on objective reasons, being otherwise breached the principle of entrepreneurial freedom under Article 41 of Italian Constitutional. The judge can only verify the actual existence of the reason given for the termination and the causal link between that reason and the dismissal, as well as the impossibility of the employer to relocate the employee within the company (so-called “repechage“).
With reference to article 41, paragraph 1, of the Italian Constitution, the judges observed that, considering the current wording of art. 18, paragraph 7, Law no. 300/70, it “would give the judge a power of choice purely entrepreneurial, that is, and essentially, the power to impose a new and autonomous act of dismissal in relation to a worker who proved to have been unlawfully dismissed and who would be, otherwise, reinstated in the workplace”.
Lastly, as to articles 24 and 111, paragraph 2, of the Italian Constitution, the Court of Ravenna affirmed that the legal provision submitted to the Constitutional Court’s examination is detrimental to the worker’s right to sue and to the principle of fair process. On this regard, it is noted that the worker “would be exposed to the exercise of a judicial discretionary power (to decide whether to dismiss a worker who, having proved the speciousness of the dismissal, would otherwise be reinstated), without being placed in the right to defend himself/herself and having to suffer, at the very moment of protection of his/her rights […], the potential arbitrariness […] of those who should protect him/her“, and this within a process in which the judge, instead of being third and impartial, as required by the principle of fair process, takes on “the role of the entrepreneur” with the “power to dismiss, moreover, completely detached from any application criteria”.
Without prejudice to the arguments raised by the Court of Ravenna, it is now necessary to wait for the publication of the Constitutional Court’s ruling in order to be able to understand the argumentative process followed by the latter to declare the illegitimacy of article 18, paragraph 7, Law no. 300/70 and subsequent amendments and additions, with specific reference to the sanctions imposed on the employer in case of manifest lack of the fact grounding the dismissal for objective reasons.
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