How do the growing safeguards change after the ruling of the Constitutional Court (Il Giornale di Vicenza – Idea Impresa, 30 May 2019 – Vittorio De Luca, Stefania Raviele)

As of 14 November 2018, the scenario of possible consequences in the event of unlawful dismissal of an employee hired in the era of the Jobs Act has radically changed. On that date, in fact, the reasons were published in the Official Gazette for ruling no. 194/2018, with which the Constitutional Court declared the constitutional illegitimacy of the main innovation of the so-called “increasing protection contract”, i.e. the determination of the compensation due for cases of unlawful dismissal on the basis of seniority alone. Furthermore, according to the Consulta, the formulation of the indemnification criterion introduced by the Jobs Act would also have been contrary to the principle of reasonableness, since the indemnity thus determined could have been insufficient to guarantee “adequate compensation for the concrete prejudice suffered” by the dismissed worker.

Despite the fact that the ruling was published in the Official Gazette on November 14 formerly only with the issue of the press release, which took place on September 26, the courts with jurisdiction began to disregard the algorithm introduced by the Jobs Act in 2015, which established the recognition of a fixed indemnity to be determined according to the length of service of the worker concerned. This is the case of the Court of Bari, which, in its judgement of 11 October 2018, ordered the employer company to pay a compensation payment of 12 months, against the 6 months due on the basis of a rule of law that was still in force at the time of the facts. But apart from these episodes, the real effect of the judgement under examination was to determine a sort of “return to the past”. Apart from cases of nullity of dismissal, the discretion of the Judges will be the determining factor in the amount of damage due to workers in the event of unlawful dismissal, and this regardless of the hiring date of the employee. It is clear, therefore, that the Court’s judgement marks a change of course that increasingly distances the principle of “legal certainty” from labour relations and, above all, introduces yet another system of protection that is difficult for foreign investors to understand.

If, in fact, the entry into force of the Jobs Act had marked a historical turning point in Italian labour legislation, which was also not affected following the Dignity Decree – which was limited to intervening only on the limits of indemnity without affecting its mechanism of quantification – the Constitutional Court has provided a strong setback, once again putting the randomness of the risk of the case at the centre of labour disputes.

This without considering the fact that, as we are seeing, the innovations of the second half of 2018 have already led to a significant increase in the propensity to appeal to the labour court to settle disputes.