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:
Last 25 June the Constitutional Court press office issued a release stating that the Court had examined, on 24 June, the issues on the constitutionality raised by the Courts of Rome and Bari regarding the criteria for determining the indemnity to pay in the presence of a dismissal vitiated only from a formal and procedural standpoint as per art. 4 of Legislative Decree no. 23/2015. Specifically, the Office made it known that the phrase “an amount equal to one month salary of the last remuneration used to calculate post-employment benefits for each year on the job” was declared unconstitutional. According to the Constitutional Court, this is because it establishes a rigid and automatic criterion, linked to the sole element of seniority. Thus the Court returns to flunk the Jobs Act. It had already ruled on the point in 2018 when it had declared art. 3, paragraph 1 of Legislative Decree 23/2015 was unlawful only for the criterion for determining the indemnity, to pay in the case of dismissal without just cause and justified reason, automatically and solely tied to seniority. The motivations for the ruling are scheduled to be filed in the coming weeks.
Other related insights:
The Court of Cassation, with judgement No. 17248 dated 2 July 2018, faced the matter of the protection of employees when in the presence of a series of fixed-term contracts. In particular, according to the Court of Cassation, the indemnity ranging from 2.5 to 12 monthly salaries from the last global remuneration as part art. 32, paragraph 5, of the Law 183/2000 (now revoked), to be paid to the employee after the conversion from an open-term contract must necessarily take into account the prejudices, in terms of remuneration and contributions, suffered in the same period ranging between the end of the contract and the judgement of restoration of the relationship. In the opinion of the Court, the indemnity in question, instead, cannot be applicable to periods of actual work during which the worker may not have suffered negative consequences either from a salary standpoint and contribution standpoint. According to the Court of Cassation, with reference to these periods the all-inclusive principle of the indemnity pursuant to art. 32 of the Law 183/2000 does not apply and the employee has the right to their calculation for seniority purposes and accrual of the related seniority thresholds. In other words, said right cannot be affected and included in the lump-sum indemnification of damage not caused by the work.
