{"id":12437,"date":"2024-03-27T09:12:08","date_gmt":"2024-03-27T08:12:08","guid":{"rendered":"https:\/\/www.zambellipartners.com\/?p=12437"},"modified":"2024-03-27T09:12:08","modified_gmt":"2024-03-27T08:12:08","slug":"void-dismissals-and-reinstatement-article-2-paragraph-1-of-legislative-decree-no-23-2015-is-unconstitutional","status":"publish","type":"post","link":"https:\/\/www.zambellipartners.com\/en\/void-dismissals-and-reinstatement-article-2-paragraph-1-of-legislative-decree-no-23-2015-is-unconstitutional\/","title":{"rendered":"Void Dismissals and Reinstatement: Article 2, paragraph 1, of Legislative Decree No. 23\/2015 is Unconstitutional"},"content":{"rendered":"

The Constitutional Court (sentence no. 22 of February 22, 2024) once again ruled on Legislative Decree no. 23\/2015 (Jobs Act) declaring unconstitutional its Article 2, paragraph 1 which provided for the reinstatement only in cases of nullity of dismissal “expressly provided for by law”.<\/p>\n

Void Dismissals and Reinstatement: Article 2, paragraph 1, of Legislative Decree No. 23\/2015 is Unconstitutional<\/h2>\n
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The case under examination concerned the compliance with Italian Constitution of Article 2, paragraph 1, of Legislative Decree No. 23\/2015, initiated by the Supreme Court with referral order of 7 April 2023.<\/p>\n

In particular, the Supreme judges took as a basis the decision of the Florence Court of Appeal, which having found that the dismissal of an employee was null and void due to the breach of the special regulations applied to him, had not granted him the reinstatement but only the indemnity protection. The Court of Appeal justified its decision on the grounds that (i) Article 2, paragraph 1, of Legislative Decree No. 23\/2015 \u201cprovides for the reinstatement of the employee only in cases of discriminatory dismissal\u201d or \u201cin the other cases of voidance expressly provided for by law\u201d and (ii) in that case \u201cdiscriminatory nature had to be excluded and the voidness was not expressed.\u201d<\/p>\n

The employee challenged the decision before the Supreme Court, complaining that the Court of Appeal, in stating that the reinstatement protection only applies to cases of express voidness and not to all cases of voidness, wrongly interpreted Article 2, paragraph 1, of Legislative Decree no. 23\/2015 both from the standpoint of breach of the enabling Law no. 183\/2014 and because the emphasis of the adverb \u201cexpressly\u201d would be unconstitutional and in any case illogical and inconsistent.<\/p>\n

The Supreme Court, with referral order no. 9530 of 7 April 2023, ruled that the exclusion of voidness other than those expressed\u2014consequent to the use in Article 2, paragraph 1, of Legislative Decree No. 23\/2015 of the adverb \u201cexpressly\u201d\u2014was not reflected in Law No. 183\/2014, which on the contrary recognized reinstatement in cases of null dismissals generically understood without any distinction. In light of the above, the Supreme judges raised questions concerning the compliance with the Italian Constitution of the said Article regarding the part where it provides for reinstatement in the event of discriminatory dismissal or \u201cin the other cases of voidance expressly provided for by law.\u201d<\/p>\n

The Constitutional Court, with judgement no. 22 of 22 February 2024, after an accurate assessment of the limits and criteria of enabling legislation, stated that the distinction between \u201cexpress nullities and nullities that are not expressed\u201d is not based on the enabling Law no. 183\/2014.<\/p>\n

By expressing the above conclusions, the Constitutional Court provided that, in the future, the regime of void dismissals will be the same both in the case where the mandatory provision breached also contains the express and textual sanction of voidness, and in the case where voidness is not expressly envisaged as a sanction.<\/p>\n<\/div>\n

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Key Action Points for Human Resources and In-House Counsel<\/h2>\n

Practical Points<\/strong><\/p>\n