Comment by the lawyer Ciro Cafiero – Cafiero Pezzali & Associati law firm
With the well-known sentence no. 194 of 2018, the Consulta declared art. 3, paragraph 1, of Legislative Decree no. 23 of 2015 in the part in which it grants the worker, employed by a company with more than 15 employees, illegitimately dismissed an increasing compensation protection by reason of the length of service alone, between a minimum of 6 months and a maximum of 36 months (note 1). Unconstitutional in that, according to the Court, it violates Articles 3, 4, paragraph 1 and 35, paragraph 1 of the Constitution.
In other words, in the opinion of the Constitutional Court, the protection mechanism designed by article 3, paragraph 1, of Legislative Decree no. 23 of 2015 (so-called Jobs At) is not suitable for achieving that reasonable balance between labor law and freedom of economic initiative (note2).
Unsuitable because, on the one hand, it guarantees equal protection with respect to the personal situation of different workers (here the violation of Article 3 of the Constitution).
On the other hand, because it neither guarantees “adequate” refreshment to the damage actually suffered by the worker nor adequately dissuades the employer from committing the offense.
Furthermore, the Consulta starts from the assumption that “the increasingly clear affirmation of the right to work (Article 4, paragraph 1 of the Constitution), alongside the protection of work in all its forms and applications (Article 35, paragraph 1, Const.) Is substantiated in recognizing, among other things, that the limits placed on the power of withdrawal of the employer correct an existing imbalance in the employment contract. The strong involvement of the human person – unlike what happens in others duration relationships – qualifies the right to work as a fundamental right, which the legislator must look at in order to provide specific protections “(note3).
The Judge of the laws did not, however, take a position on the adequacy of the range, relating to compensation protection, ranging from 6 to 36 months. Furthermore, it reaffirmed the principle that it is up to the legislator only to choose the nature of the protection in favor of the illegally dismissed worker: between the real one, with the consequent reintegration into the company of the latter, and between the merely compensatory one, that the Legislative Decree n. 23 of 2015 (so-called Jobs Act) has made the predominance of the exception of residual hypotheses of real protection completely predominant.On this basis, it is clear that the protection granted to the illegally dismissed worker is able to overcome the constitutionality check if: a) it takes due account of the personal situation of each individual worker; b) it guarantees adequate refreshment for the damage suffered, without prejudice – as seen – to the constitutional legitimacy of the range between 6 and 36 months as compensation for compensation; c) as a deterrent, is to reduce the risk of further future unlawful layoffs by the employer.
The new possible criteria for calculating the compensation allowance
That said, the question that needs to be asked is what the additional legal criteria could be, compared to that of length of service, on which the protection mechanism in favor of the worker illegitimately dismissed by a company with more than fifteen employees.Going by exclusion, they do not seem to hit the mark – returned to force – covered by the current article 18, fifth paragraph, of the law n. 300 of 1970 (so-called Workers’ Statute), as amended by law no. 92 of 2012 (so-called Fornero reform) and art. 8 of the law n. 604 of 1966 or those “of the number of employees employed, the size of the economic activity, the behavior and conditions of the parties”.And in fact, they, on the one hand, anchor protection not already to the personal situation of each individual worker but to exogenous variables. On the other hand, as experience has shown, data such as the number of employees employed and the size of the economic activity vary rapidly and, therefore, may prove incapable of photographing the actual business reality and, in any case, of acting as a deterrent with respect to illegal conduct of the employer.On the other hand, these criteria create uncertainty. In fact, above all the evaluation of the behavior and conditions of the parties is left to the Judge only and, therefore, as entirely discretionary, is uncertain by definition. On the other hand, there is a strong need to prefer objective criteria in order to allow companies, the lungs of our country, above all to predetermine the cost of dismissal in the sign of that balance between labor law and freedom of economic initiative evoked by the Constitutional Court itself.
And so ‘, assuming a solution, and therefore new criteria, the compensation allowances could increase, as well as due to the length of service of the worker, due to the family loads and the income situation of the worker, according to precise steps of income and in view of its distance from the retirement age. Going in order, the criterion of length of service would protect (as already happens today) the older workers, difficult to be placed on the market and, especially today, often burdened with the weight of the unemployed children. Against this eventuality, it would be interesting to outline paths capable of requalifying them for new jobs, once fired, in the name of the so-called active aging. Secondly, the family burdens criterion would protect the youngest workers, who today also are in an emergency state of need and who, by virtue of the criterion of length of service alone, were the most penalized. However, it might prove useful to broaden the notion of family loads, since it must also include the concrete potential of having children of workers made redundant in consideration of the date of their marriage. For example, a worker who has been married for two years should, on the level of family burdens, be treated as one with a son and one with a son but married for four years with a worker with two children. This solution would reduce the risk that workers, just married, would give up planning children as a result of the dismissal of one of them, given that ours is a country that desperately needs births. There are, in fact, only 8 born out of 1000 inhabitants with an active population that is drastically decreasing: by 23% in 2050. If the active population erodes, there is also a strong risk of failure of the intergenerational pact on which most of our welfare system. On these assumptions, that of family loads, in addition to being an objective criterion, would be able to protect the specificity of each individual worker and pregnant with an intrinsic deterrent value given that the more family loads the worker would have, the more the cost of his dismissal would increase. . Thirdly, and finally, according to the criterion of the employee’s income situation, the compensation to which the worker would be entitled would be inversely proportional to the income received in the company before the dismissal and directly proportional to his distance from the retirement age.
This would make it possible to guarantee greater compensation to those who have to get back into the game with more economic difficulties and for a still long time and therefore would result in an incentive for the worker to (re) do immediately and well, also with a view to self-entrepreneurship . As experience has shown, in many cases, workers who remain unemployed and have sufficient savings to cope with a period of non-work fall into dangerous states of indolence, sometimes even to drastic choices to abandon their families and interests. . In this way, moreover, they emerge from the ranks of the active population, with every consequence in terms of keeping our welfare and stop feeding the market demand. This criterion, in addition to being objective, would have the advantage of taking into account the personal situation of the worker and of performing a deterrent function with respect to the illegal conduct of the employer. Conclusions The sentence no. 194 of 2018 of the Constitutional Court rekindles the spotlight on the person and hopes for a protection in the sign of the balance between the right to work and the company’s interest in making choices attributable to the freedom of economic initiative. In the sign of a new humanism of work, therefore, the legislator is required, on the one hand, to guarantee companies the conditions to operate without obstacles also with respect to choices relating to the reorganization of the workforce, on the other, to protect the worker , in cases where these choices are unlawful, with a view to valorising the specificities of the dismissed person and protecting against further behavior against the law, reminding us that it is the “neighbor”. After all, companies and workers, in this difficult economic situation, are two equally weak subjects and as such equally worthy of protection.
NOTE 1. Originally, the minimum threshold was 4 monthly payments while the maximum was 24. The increase was made by law decree no. 87 of 2018 (so-called Dignity decree), converted into law no. 96 of 2018. 2. In reality, the jurisprudence has extended the effects of the unconstitutionality declared by the Consulta also to the art. 9, first paragraph, of d. lgs. 23/2015 which instead has not been subject to complaints because it is not the subject of the question of constitutionality. In this sense, the Court of Genoa, with an order dated November 21, 2018 (judgment with RG 1550/2018) argued: “it is inevitable, however, to evaluate the impact of the ruling 194/2018 also on his (ed in relation to art 9 of Legislative Decree No. 23 of 2015) application, both because this regulation directly refers to that of the first paragraph of art.3, to assume the basis for calculating the compensation due to employees of small businesses and because it adopts the same device, anchored exclusively to length of service (unlike the homologated provision of art. 8 l. 604/66, indicated by the Consulta as a constitutionally correct model). flat-rate predetermination of compensation for damage “in light of general principles of the system. Within the provisions of the first paragraph of Article 9, there is no element, even of a systematic order, which makes it reasonable to depart from it for the mere fact that the employer company lacks the dimensional requirement of art. 18 l. 300/70. In order to avoid a contrasting application with the ruling of the Constitutional Court, it must be considered that the postponement to the “amount of the indemnities and 11 of the amount provided for by art. 3, paragraph 1 ..” should be read in reference to all the compensation criteria indicated by the ruling 194/2018. By remitting the judge with a more accurate assessment of the value of the compensation, this constitutionally oriented interpretative solution meets the same boundary represented by the “respect of the limits, minimum and maximum” foreseen by the applied provision, according to the expression used by the Court. In the case of art. 9, first paragraph, d. lgs. 23/2015 the limit dictated by the legislator is only maximum
3. In this regard, it is worth mentioning the terms in which, during the constituent assembly, Fanfani expressed himself in order to enhance the fundamental right to work with reference to art. 1 of the Constitution, in the current version wanted by the Christian Democrat wing and subjected to several amendments (that of the communists: “Italy is a democratic republic of workers”; that of La Malfa: “Italy is a republic founded on the rights of liberty and labor rights “):” By saying that the Republic is founded on work, it is excluded that it may be founded on privilege, on the hereditary nobility, on the fatigue of others and instead it is stated that it is based on duty, which is also the right at once for every man to find in his free effort his ability to be and to contribute to the good of the national community. Therefore, no pure exaltation of muscle fatigue or physical effort, as superficially one could imagine , but affirmation of the duty of every man to be what everyone can in proportion to the natural talents, so that the maximum expansion of this popular community can only be achieved when each man has achieved, in the fullness of his being, the greatest contribution to common prosperity. The expression based on work therefore marks the theme of our entire Constitution “. To this must be added that, if it is true that work derives from the Latin labor which means fatigue (in the sense of bearing weight), it is also true that the root Sanskrit from which the Latin “labor” derives, means “to achieve what you want”.