The problem with dismissals “Here two different sets of rules seem to apply” (Quotidiano Nazionale, 6 July 2016 – Vittorio De Luca)

The “increased protection based on seniority” of the new contract, applies to hirings after 7 March 2015. For the others article 18 is still valid, a dual system with many paradoxes.

A dual dismissal system, where legislation uses double standards, based on the categories of workers. This is the scenario that, according to Vittorio De Luca, lawyer of the De Luca & Partners law firm, was created in the Italian job market after the approval of the Jobs Act, the welfare reform of the Renzi government. As those who follow the news know well, the Jobs Act eliminated article 18 of the Workers’ Statute. As of last year, the obligation to reinstate the worker only exists in limited cases, for example when the employee is fired by the company for discriminatory reasons (for example for racial prejudice).

In most cases (for example when the worker is dismissed for disciplinary reasons), the reinstatement obligation no longer exists; the worker only has the right to a cash indemnity, proportional to the years of seniority, even if the dismissal is declared unlawful. Thus, a new employment contract was created, called “increased protection based on seniority” because it includes protection against dismissals that increases over time.  However, this new contract, only applies to hirings after 7 March 2015. For employees who already worked prior to this date, the rules of the old article 18 are still valid, in effect before approval of the Jobs Act.

And it is precisely for this reason, according to De Luca, that with the latest reform a dual system was created. “It has the paradoxical consequence”, stated the lawyer, “that two employees of the same company, dismissed for the same reason and at the same time, may have the right to a radically different protection, based on the date they were hired”. In the presence of an unjust dismissal, whoever was employed before the arrival of the Jobs Act, has the right to be reinstated in their position, unlike a colleague who was hired after 7 March 2015. This limit of the reform also emerged in a survey conducted by De Luca & Partners, on a sample of more than 200 companies. The interviewed companies, even if they expressed a positive evaluation of the Jobs Act, reported that the greatest obstacle to hiring in Italy is still represented by labour costs that are too high.