JOBS ACT: INCREASING EMPLOYEE PROTECTION IS AGAINST THE ITALIAN CONSTITUTION
Increasing employee protection against wrongful dismissal was introduced by new labour legislation (law no.23/2015), the so-called ‘Jobs Act’.
Althuogh it does not create a special or new kind of employment contract, the act states that in case an employee is dismissed without cause, the employer is subject only to a financial sanction.
This new rule applies only to employment contracts stipulated after 7.3.2015, whilst the previous provisions of article 18, law no. 300/1970 and law no. 92/2012 remain in force for employment contracts stipulated before this date.
The previous act protected employees against wrongful dismissal by providing the so-called ‘tutela reale’, i.e. the employee’s right to obtain from the Labour Court a judgement enforcing the reinstatement of the employment contract.
The Jobs Act changed this special form ofprotection, which is now greatly restricted to the following few cases: the dismissal is declared void or discriminatory or was given only orally, not in writing.
Therefore, if the dismissal concerns an employment contract stipulated after 7.3.2015, the general rule is that the employee onlu has the right to an indemnity from a minimum of two months of salary to a maximum of twenty-four months (art. 3 D. Lgs. 43/2015).
The new Italian government, with a recent amendment (law no. 87/2018), subsequently converted into Law 9.8.2018 n. 96, increased the amount of the above indemnity, starting from a minimum of six months (instead of twp) to a maximum of thirty-six months (instead of twenty-four).
The Italian Constitutional Court (C.C.), which is the keeper of constitutional principles, has now judged that the Jobs Act is not in full compliance with constitutional principles. According to the Supreme Court’s reasoning, the provisions in the Jobs Act’s rule, which states that an employee is entitled to an indemnity solely proportional to the length of the specific employment contract, is not in compliance with the general principle of equality. The C.C. points out that the Judge is not allowed to take into consideration other specific aspects of the case, like the parties’ behaviour, the kind of the job or the labour. relations context and other related circumstances. The C.C. sentence was issued on 26.9.2018 and the motivation for the judgement has not yet been published. However, while waiting for the full sentence, we can suppose that the C.C. has shared the Rome Court's analysis contained in the ordinance dated 26.7.2017, through which compliance with Jobs Act articles 2, 4 and 10 was submitted to the C.C. The Rome Court stressed the strong discrepancy between the new discipline applicable to an employment contract established after 7.3.2015 and the one applicable to an employment started before that date.
If we imagine the same kind of two unlawful or wrongful dismissal by the same employer, where the more senior employee is entitled to make a claim to maintain their position, plus an indemnity between 12 and 24 months, whilst the less senior employee is entitled only to claim a monetary indemnity of 6 months, we understand the violation of the general equality constitutional principles found by the C.C. The principles involved in the C.C. statement are related to the follwing articles of the Italain constitution:
-violation of art. 3 (equality of all citizens before law)
-violation of art. 4 and 35. (the right of any person to a job)
-violation of art. 117 and 76. (non-compliance with EU rules and other internatinal disciplines).
Once the CC sentence is fully available, Parliament will likely have to amend the Jobs Act to rebalance increasing employee protection against wrongful dismissal in accordance with the C.C. judgement.