Legislative Decree 23/2015, introducing the so-called "with increasing safeguards" contract, reformed the rules on dismissals, providing, in art. 3, the notion of non-existence of the "disputed material fact", taking from the judge - called upon to assess the validity of the dismissal - every proportional connection between the violation charged to the worker and the employer withdrawal.
According to part of the doctrine and jurisprudence, however, the inexistence of the "disputed material fact" should be placed in continuity with the absence of the "disputed fact", referred to in art. 18, c. 4, of Law 300/1970, as amended by Law 92/2012, with the effect of achieving, including for the dismissals announced under the validity of the new law ("Jobs Act"), the reintegration in the place of work where the disputed fact - although it actually happened - is devoid of disciplinary importance, thus returning to the concept of "legal fact", developed in relation to the fourth paragraph of art. 18.
On this point, the Court of Cassation has recently intervened with sentence no. 12174 of 08.05.2019. It stated that there is indeed no solution of continuity between the two concepts, confirming the interpretation of the disputed fact as legal.
This, both because of the substantial terminological correspondence between the rule introduced by the 2015 legislator and the reform of art. 18, c. 4, of 2012; and because the wording of art. 3, in its general features, takes up that of art. 18 of the Workers' Statute, in consideration of the fact that the legislator intended, however, to attribute “to the so-called strong indemnity protection of a general nature "(Cass. SS.UU. 30985/2017), in light of the "constitutional guarantee (del) right not to suffer an arbitrary dismissal" (Cost. Court n. 541/2000).
In fact, after a review of the legislative structure and of the jurisprudential guidelines formed on the subject, the Supreme Court affirmed that "the expressions used (that is: disputed material fact) can only refer to the same notion of "disputed fact" as elaborated by the jurisprudence of legitimacy in relation to Law no. 300 of 1970, art. 18, paragraph 4, and which constitutes current living law”.
The Court has reached this strong conclusion of a constitutionally oriented interpretation of the expression "disputed material fact", which imposes, according to the principle of guilt, that the disputed fact is attributable subjectively and objectively to the worker.
In other words, the material fact, to be contestable, must be a fact "not only materially integrated but also of disciplinary importance", as a "juridical fact", as a contractual non-fulfilment is not otherwise attributable to the worker that is not appreciable even from the legal point of view.
In conclusion, with the ruling in question, the Court of Cassation has granted a new course to the jurisprudential line developed with reference to the previous legislation, extending de facto the reinstatement protection to the worker, hired under the regime of increasing protections, that is dismissed for a disciplinary irrelevance. (AA)
