Categories: Insights, Do you know that

Tag: Dismissal, Jobs Act, Licenziamento


27 Jul 2020

DID YOU KNOW THAT… the judgment declaring article 4 of Legislative Decree No. 23/2015 unconstitutional has been published?

With judgment No. 150 lodged last 16 July, the Constitutional Court has declared article 4 of Legislative Decree No. 23 of 4 March 2015 constitutionally unlawful , with limitation to the words “for an amount equal to a monthly salary of the last pay of reference for calculating the severance pay for each year of employment”.

The constitutionality issue had been raised by the Courts of Bari and of Rome with orders dated 18 April 2019 and 9 August 2019, respectively, within the scope of legal proceedings having as subject matter the unfairness of dismissals notified in breach of the relevant procedural rules, amongst which, article 7 of Law No. 300/1970.

In the opinion of the Judges a quo, any dismissal notified in breach of the formal rules (i) shall entail the breach of mandatory provisions, established beforehand in view of ensuring the “audiatur et altera pars” principle of legal civilisation and (ii) would always take the shape of “a breach of the law which must entail ‘adequate and customised compensation, even if by way of a lump sum”.

By aligning itself with the principles set forth in the previous judgment No. 194/2018, the Constitutional Court has found that the method for quantifying the compensation applied to those dismissals for defects of formal nature only “enhances the marginality of the formal and procedural defects, also further belittling the role of guaranteeing fundamental values of legal civilisation, aimed at protecting the worker’s personal dignity”.  Indeed, such mathematical criteria does not prove to be “adequate compared to the purpose of dissuading employers from bringing about dismissals affected by formal defects”.

Furthermore, seniority of employment neglects the assessment of the specificity of the actual case” and is unfit to disclose the wide range of variables directly affecting the employee personally”.Therefore, it has no reasonable relation with the disvalue of the dismissal affected by formal and procedural defects, which the legislator has intended to punish and which may not be exhausted in the mere arithmetic calculation of the seniority of employment. Therefore, according to the Constitutional Court, in compliance with the minimum and maximum limit set forth by the legislator, in calculating the relevant compensation, the Judge seized must, above all, take the seniority of employment into consideration, that is “the starting point of the assessment”. In any case, in no way can the Judge set aside the application with a properly grounded assessment” of other criteria, which contribute “in a corrective vein” to make the calculation of the compensation concerned close to the peculiarities of the specific case.  Amongst these, it is worth mentioning the seriousness of the breaches, pursuant to article 18, sixth paragraph, of Law No. 300/1970, the number of people employed, the size of the company, the behaviour and the conditions of the parties, cross-referenced by article  8 of Law No. 604 of 1966.  

Others insights related:

DID YOU KNOW THAT… In the event of unlawful formally vitiated dismissal, the indemnity cannot be tied to seniority alone?

Subscribe to our newsletter

Contact

Need information? Write to us and our team of experts will respond as soon as possible.

Fill in the form

More news and insights

17 Mar 2026

Equal pay: green light for the decree on pay equality and wage transparency (People are People, 16 marzo 2026 – Claudia Cerbone, Martina De Angeli)

Claudia Cerbone and Martina De Angeli, professionals at the De Luca & Partners firm, author this article dedicated to the draft legislative decree approved last February 5 by…

16 Mar 2026

Illegitimacy of staff leasing due to violation of the principle of temporariness (Top 24 Lavoro, 27 febbraio 2026 – Vittorio De Luca, Alessandra Zilla)

With judgment no. 4493 of December 19, 2025, the Court of Milan addressed the issue of indefinite-term labor supply (so-called staff leasing). In particular, the Court clarified that,…

10 Mar 2026

The transfer of the employee is lawful when there is incompatibility with the company environment (Camera di Commercio Italo-Francese, 10 marzo 2026 – Vittorio De Luca, Silvia Zulato)

With Order No. 4198 of 25 February 2026, the Italian Supreme Court (Court of Cassation) – Labour Section – reaffirmed that a situation of environmental incompatibility may justify…

3 Mar 2026

Employee monitoring: when “bossware” becomes a legal risk (Agenda Digitale, 2 marzo 2026 – Martina De Angeli)

Monitoring workers through digital tools is a rapidly expanding practice, accelerated by the spread of remote work and the digital transformation of companies. Before adopting these systems, however,…

3 Mar 2026

Melismelis signs the campaign for the 50th anniversary of De Luca & Partners

For the historic labor law firm, the agency developed the 50th-anniversary logo and advertising campaign, managed online and offline media planning, and renewed the website’s visual identity. Milan,…

27 Feb 2026

Dismissals: the Corte costituzionale grants broader discretion to judges and greater scope for reinstatement (I Focus del Sole 24 Ore, 26 febbraio 2026 – Vittorio De Luca e Alessandra Zilla)

The regulation of dismissals continues to represent one of the central pillars of Italian labour law, an area of constant tension between freedom of economic initiative and the…