{"id":13697,"date":"2025-05-12T11:47:26","date_gmt":"2025-05-12T09:47:26","guid":{"rendered":"https:\/\/www.zambellipartners.com\/?p=13697"},"modified":"2025-05-22T11:11:11","modified_gmt":"2025-05-22T09:11:11","slug":"does-the-jobs-acts-repealed-referendum-scheduled-for-8-and-9-june-still-make-sense","status":"publish","type":"post","link":"https:\/\/www.zambellipartners.com\/en\/does-the-jobs-acts-repealed-referendum-scheduled-for-8-and-9-june-still-make-sense\/","title":{"rendered":"DOES THE JOBS ACT\u2019S REFERENDUM SCHEDULED FOR 8 AND 9 JUNE STILL MAKE SENSE?"},"content":{"rendered":"

Published on L&E Global website the new article by Angelo Zambelli.<\/h2>\n

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In light of the several interventions of the Constitutional Court, due to which the scope of application of the remedy of reinstatement is widened compared to the indemnity protection, it clearly appears that the Jobs Act abrogative\u00a0referendum<\/em>\u00a0does not respond to an actual need of protection for employees.<\/p>\n

An indirect answer on an actual need of the Jobs Act repealed\u00a0referendum<\/em>\u00a0scheduled for 8 and 9 June seems to come from the Supreme Court, which ordered reinstatement (Ordinance No. 6221 of 9 March 2025) instead of confirming the indemnity protection, with reference to the case of an employee hired after 7 March 2015 and dismissed for alleged but unproven, \u201ccompany reorganisation aimed at obtaining greater efficiency and cost-effectiveness in management.<\/em>\u201d<\/p>\n

The Court of merits, in fact, partially reforming the first degree judgement, had declared the dismissal of the employee unlawful, considering vague the employer\u2019s allegations \u201cas to the concrete methods of reorganisation and reallocation of production factors<\/em>\u201d and, as a result, in application of section 3, paragraph 1, of Legislative Decree no. 23\/2015, had ordered the company to pay an indemnity equal to six months of the last salary as reference for the calculation of the end of service allowance (TFR<\/em>).<\/p>\n

The decision was challenged by the employee before the Supreme Court both due to the fact that the Court did not recognise the retaliatory nature of the termination and with regard to the incorrect quantification of the indemnity awarded to the employee \u201cfurther to a dismissal notified for reasons having nothing to do with events subjectively or objectively relating<\/em>\u201d to the employee\u2019s role.<\/p>\n

The Supreme Court, with reference to the first objection above, clarifies that the Court of the merits, in the absence of \u201cfurther facts, even circumstantial,<\/em>\u201d correctly excluded the recurrence of retaliatory reasons for dismissal since the ascertained unjustifiability of the dismissal alone could not lead to the presumption of an unlawful reason for termination. That being said, and with regard to the sanctions applied\u00a0ratione temporis<\/em>, the employee \u2013 continues the Supreme Court \u2013 can now \u201cbenefit<\/em>\u201d from ruling no. 128 of 2024, according to which the Constitutional Court declared illegitimate Section 3, paragraph 2, of Legislative Decree no. 23\/2015, in the part in which it did not provide that the reinstatement protection also applied in the case of dismissal for justified objective reason where the inexistence of the material fact alleged by the employer was directly proven in court. This was because, according to the Constitutional Court, unlike the parallel case of dismissal for just cause or justified subjective reason, it was precisely \u201cthe radical irrelevance<\/em>\u00a0[\u2026]\u00a0of the inexistence of the material fact in the case of dismissal for justified objective reason<\/em>\u201d that determined \u201ca lack of systematicity,<\/em>\u201d unjustifiably differentiating \u201csituations that were entirely identical, or at least homogeneous.<\/em>\u201d<\/p>\n

Considering that, pursuant to Section 136 of the Italian Constitution, the declaration of unconstitutionality of a rule of law entails that the latter ceases to have effect from the day following the publication of the decision \u2013 the remand of the judgement to the Court of merits so that the latter applies Section 3, paragraph 2, of Legislative Decree no. 23\/2015 in the version in compliance with the judgement of unconstitutionality no. 128 of 2024. Therefore, the widening of the scope of application of the remedy of reinstatement is confirmed compared to the indemnity protection which is now confined to marginal hypotheses. This is why to date, in light of the several interventions of the Constitutional Court (no less than three in the year 2024 alone), it clearly appears that the Jobs Act abrogative\u00a0referendum<\/em>\u00a0does not respond to an actual need of protection for employees.<\/p>\n

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

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