The Constitutional Court, in ruling 125 filed on 19 May 2022, expressed its opinion on paragraph 7 of art. 18, of law no. 300/1970 which recognises the reinstatement protection in cases of dismissal for justified objective reason, only if it is established that there is a “manifest lack” of the fact underlying the dismissal.
The Constitutional Court declared the above paragraph unconstitutional, limited to the word “manifest.” The Court specified that the fact underlying the dismissal is to be “traced back to what pertains to the effectiveness and genuineness of the entrepreneurial choice.” On these aspects the judge is called upon to carry out an assessment of legitimacy that cannot “encroach onto a review of appropriateness and opportunity” (see ruling no. 59 of 2021).
The manifest lack of the fact requirement is vague and lends itself to uncertainties, with consequent treatment inequalities. The existence of a fact is a difficult notion to classify because it suggests “a clear alternative, which the court’s assessment is called upon to resolve in positive or negative terms.”
The ruling stated that the manifest lack criterion, “is unconventional in the system of remedies, usually focused on the varying seriousness of the defects and not on an accidental contingency, linked to the linearity and celerity of the assessment.”
In disputes concerning dismissals for objective justified reason, there is complex evidence. The parties and the judge, must ascertain the existence or lack of a fact, which is a complex operation, and engage “in a further verification of the precise degree of the possible lack of the fact.” This would imply an “unreasonable and disproportionate burden” on the proceedings. The vagueness of the requirement would thus be accompanied by an unreasonable complication of the proceedings.
The Constitutional Court identified an imbalance between the goals the legislature had set (consisting in a fairer distribution of protections, through quicker and more easily predictable decisions) and the means adopted to achieve them.
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