Reinstatement after unfair dismissal, the first question | The referendum explained

Four of the five questions subject to the abrogative referendum to which citizens will be called to Vote on Sunday 8 and Monday 9 June are promoted by the CGIL union and concern the Work. The first, in detail, asks for the cancellation of the disciplinewhich entered into force in 2015 with the Jobs Act (Legislative Decree 23/2015) introduced by the Renzi government, on the layoffs of the contracts with growing protections. The rule in question establishes that in companies with more than 15 employees and for those who have been hired after March 7, 2015, in the event of illegitimate dismissal, reinstatement is not foreseen in the workplace.

Double -track sanction system

Basically, the Jobs Act cancel the provisions of article 18 of the work statute, Dating back to 1970 and then slightly modified with the Fornero law (92/2012): the reinstatement in the company is no longer the general rule, but the exception. Instead of the reinstatement – but only to those who have been hired after March 7, 2015 – the employer is required to compensate an « certain and growing » economic compensation, commensurate Based on the seniority of service and which can be worth a minimum of six months up to a maximum of 36. « It is a double -track sanctioning system – explains Giovanni Piglialami, researcher the Adapt Association and the University of Modena and Reggio Emilia -, in the sense that in the event of unjust dismissal, a penalty against the employer is foreseen. Until 2015, the most widespread and more protected for workers was the reintegration to their duties. The Jobs Act, from that date onwards, narrows its hypotheses of application ».

When reinstatement is foreseen and when the indemnity

According to the currently current rule – that such would remain in the event that its repeal does not pass to the referendum – the reinstatement within the company remains the option « in those cases in which there is real discrimination against the employee or is exercising the fundamental rights provided for by the Constitution », he adds to take me. Here are what are:
– discriminatory dismissal (for example for reasons related to political or religious ideas, during motherhood or marriage leave or is only verbally intimated);
– unjustified disciplinary dismissal.
On the contrary, economic compensation is provided in the following cases:
– individual dismissal for economic/organizational reasons (defined as dismissal for justified reason);
– disciplinary dismissal;
– collective dismissal in the event of violation of the criteria for choosing the workers to be fired;
– dismissal due to illness But before the expiry of the so -called « period of delivery », or the maximum time granted to a worker to keep the job in case of absence due to illness. Once passed, the employer has the right to dismissal even if the disease persists.

The amount of the compensation

« Initially the compensation allowance was to be calculated on the basis of the seniority of the worker at the company – he argues the researcher -. In 2018, however, the Constitutional Court intervened first of all by reiterating that Economic compensation must have a deterrence function, That is, discouraging the employer to resort to dismissal where it is not justified, but also considering this illegitimate system. Thus, the minimum and maximum value limits set and entrusts a judge with the task of establishing the amount with respect to the specific case « .

The referendum

The goal of the referendum and those who promote it is Abbish the Jobs Actfavoring a system that guarantees greater protections for workers. In this way, « a single sanctioning plant would remain, that according to article 18 of the workers’ statute », continues to take me, which provides for the reinstatement of their workplace in most cases, offering greater guarantees to the employee. The Fornero law had started to restrict the hypotheses of reinstatement, as the researcher reiterates, but less drastically: « This rule concerns companies with more than 15 employees – he concludes – but also in those that have 20.30 and 50, compared to large companies with many resources, The reinstatement risks promoting a hostile work environment for those who have undergone illegitimous dismissalor. Thus, with the modification of 2012, the employer can reintegrate the employee within three days or compensate an indemnity set at 15 months. The decision belongs to the worker ». According to the CGIL, over 3.5 million workers have been hired since 7 March 2015 and who are « penalized by a law that prevents reinstatement also in the event that the judge declares and unfounded the interruption of the relationship ».