Dismissal and groundlessness of facts (Modulo24 Contenzioso Lavoro (Form24 Labour Litigation) of Il Sole 24 Ore, 28 March, Vittorio De Luca)

Disciplinary dismissal and groundlessness of the contested fact considering case law following the amendment of Art. 18 of the Workers’ Statute by the “Fornero Law”, and the entry into force of the “Jobs Act.” According to the latest developments in case law, groundlessness of the contested fact includes cases in which the fact has not materially occurred, and those in which the fact, which materially occurred, has no disciplinary relevance for the objective or subjective profile of the attributability of the employee conduct

Regulatory reference and the Fornero reform

Art. 1, paragraph 42, of Law 92/2012 amended Art. 18 of the Workers’ Statute classifying penalties resulting from the unlawful dismissal rulings, to make workplace reinstatement a last resort.

Other than null dismissal, protection is provided for cases of qualified unjustifiability specified in the fourth and seventh paragraphs of Art. 18 of the Workers’ Statute .

Before the entry into force of the Fornero Law reform under Art. 18 of the Workers’ Statute, in the absence of just cause or subjective justified reason, workplace reinstatement, with variable compensation, was the only protection for the employee. To establish the dismissal’s legitimacy, the Court was called to assess proportionality between the disciplinary offence committed by the employee and the penalty.

Before the Fornero reform, a dismissal could be considered legitimate provided that the employment termination was a proportionate consequence of the worker’s breach.

With the reform of Art. 18 of the Workers’ Statute, the concept of groundlessness of the fact was introduced for disciplinary dismissals, which refers to the concept of ” groundlessness of the contested fact“, and dismissal for objective justified reason, which refers to “manifest groundlessness of the fact underlying the dismissal.”

Paragraph 4 includes the groundlessness of the contested fact and the fact falling within conduct punishable with a conservative penalty under collective agreements or the disciplinary code.

Paragraph 7 considers the manifest groundlessness of the fact underlying the dismissal for objective justified reason.

Continue reading the full version published in Modulo24 Contenzioso Lavoro (Form24 Labour Litigation) of Il Sole 24 ore.