On September 26th, 2018, the Italian Constitutional Court declared the unlawfulness of Legislative Decree no. 23/2015 (better known as “Jobs Act”), in the part where it provides for the case of illegitimate dismissal of employees hired after March 7th 2018, an “increasing protection” system of penalties based only on the their specific length of service within the company.
In the interpretation of the Court, in fact, the method of calculation of the indemnities for illegitimate dismissal only on the basis of employee’s length of service, ends up causing a significant difference in treatment between employees hired before and after March 7th 2015.
In fact, employees hired before March 7th 2015 are entitled to an indemnity, which has to be calculated on the basis of many other criteria in addition to length of service (i.e. number of employees in the company, size of economic activity etc.), as provided by Article 18 of the Workers’ Statute.
According to the Constitutional Court, the mentioned standardized system of penalties contradicts the Constitutional principles of reasonableness and equality, in addition to the right and protection to work pursuant to Articles 4 and 35 of the Constitution.
Court of Bari has recently put the Constitutional Court principles in practice and it has identified some useful guidelines, which could be followed in the future by judges in order to estimate the indemnity quantification due to the employee hired after March 2015 for the case of illegitimate dismissal.
In fact, in a recent ruling dated October 10th 2018 the mentioned Court held that the calculation of the indemnity for the case of illegitimate dismissal shall not be based anymore exclusively on employees’ length of service, but on the same specific criteria provided for by Article 18 of the Workers’ Statute for employees hired before March 7th 2015.
According to the mentioned legislative provision, in fact, the Judge is entitled to determine the indemnity due to the employee, taking into account the following elements:
- the length of service of the employee within the company;
- the number of employees employed by the company at the moment of dismissal;
- the size of the company’s economic activity;
- the behavior and conditions of the parties (i.e. gravity of the conduct, availability of the to a possible settlement solution).
In conclusion, according to this new case law interpretation, also for employees hired after March 2015, in case of dismissal for just cause or justified reason held as unfounded, the length of service becomes just one of the many elements, which could be evaluated by the judge in order to determine the indemnity due to the employee between a minimum of 6 and a maximum of 36 monthly salary.
Let us await for possible different approaches of other Courts on the point.