Prepared by Francesca Tironi and Valentina Panettella
A few weeks after the ruling that deemed void the dismissal of an executive for violation of the emergency discipline of the block of dismissals, the Court of Rome intervenes on the issue again by accepting a diametrically opposed orientation.
According to the judgment No. 3605/2021 of April 19, 2021, in fact, the literal provision of art. 46 of Decree Law No. 18/20, which refers to art. 3 of Law No. 604/1966 not applicable ex lege to executives, would not allow to consider included in the block the figure of the executive.
This exclusion would also be “consistent with the spirit that supports the exceptional and emergency provision of the ban on dismissals”, which is accompanied by the instrument of the redundancy fund to allow companies to plug their losses through a reduction in labor costs.
According to the Court, it is precisely this combination of ” ban on redundancies and access to social shock absorbers ” that ensures that the provision of the ban on redundancies does not affect employers.
If the ban on redundancies were to be extended to a figure such as that of the executive, who is precluded from having recourse to the social shock absorbers, the employer would be unable to find a solution aimed at guaranteeing an income and employment protection without additional costs.
In other words, if the extension of the ban to executives were to be allowed, the employer would necessarily have to take charge of this category, even in the case of hypotheses of justification for termination, highlighting profiles of constitutional inconsistency between the extension of the ban and the principle of economic freedom.
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