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

8 Jul 2026

Pay transparency: one month after its entry into force, two approaches are emerging in the market (The Platform, 8 July 2026 – Vittorio De Luca, Claudia Cerbone e Martina De Angeli)

Since 7 June, EU rules aimed at strengthening the principle of equal pay between men and women for the same work or for work of equal value have…

2 Jul 2026

Did you know…? As of 7 June 2026, Legislative Decree No. 96/2026 is fully in force

As of 7 June 2026, Legislative Decree No. 96/2026 is fully in force. It also introduces into the Italian legal system a structured framework on pay transparency, with…

2 Jul 2026

Failure to serve disciplinary charges does not render the dismissal null and void: italian supreme court confirms no reinstatement remedy for employers below the statutory workforce threshold

Principle of Law In its recent judgment No. 17283 of 1 June 2026, the Italian Supreme Court (Corte di Cassazione) examined the legal consequences arising from the employer's…

2 Jul 2026

AI and the employment relationship: initial guidance from the implementing decrees and data protection implications

Following the preliminary approval by the Council of Ministers, on 10 June 2026, of the first draft legislative decrees implementing the enabling law on artificial intelligence (Law No.…

1 Jul 2026

Sustainability, Responsibility, and the Future: A Commitment That Grows with Time

As we celebrate our 50th anniversary, we have chosen to look to the future with the same care and dedication with which we preserve our roots. Those roots…

25 Jun 2026

Pay Equity and Pay Transparency: What Will Change in Italy (People are People, 25 June 2026 – Claudia Cerbone e Martina De Angeli)

With Legislative Decree No. 96 of 7 May 2026, which entered into force on 7 June 2026, Italy transposed Directive (EU) 2023/970 on pay transparency, becoming one of…