Let's try to simplify for the common reader, who is most likely and understandably disoriented by the din of an often-misleading debate, the terms of the question on the reform of the laws regarding dismissal of staff.
With respect to the regulations in force (Article 18 of Law No. 300 of 1970 and related regulations) - for which employees of small-medium and large companies are entitled for any unlawful dismissal, in addition to compensation for damages, to reinstatement of the employment relationship, while employees of microenterprises (as a rule, those with less than sixteen employees) are entitled only to compensation for damages by means of a relatively modest compensatory sum (up to 6 months pay), eventual reinstatement in the place of work is only foreseen in cases of dismissal for discriminatory or otherwise illegal reasons - the generally recognized reform requirements (also in a draft document of the current government) and requested by the European Union, can be summarized as follows:
1) to strengthen the so-called "outgoing flexibility", foreseeing for illegal dismissals and especially for those based on justifiable economic or objective reasons, a sanction involving only an indemnity for the worker, but which is certainly appropriately adequate and proportional - thus formalizing a widespread practice (except in the case of questions of principle involving "arm wrestling"), which sees the same worker often willing to give up reintegration in exchange for an adequate sum in addition to compensation for damages - and reserving the sanction of coercive reinstatement of the relationship only in the case of dismissal for illicit reasons, in line with the prevailing trend in the legal systems of other European countries;
2) to give greater certainty to the reasons justifying the dismissal, and greater predictability to the outcome of the dispute, through a clear regulation that reduces the area of discretion of the judge especially for disciplinary dismissal, according to the legislative policy directive already outlined by the so-called "connected work" (law No. 183 of 2010, largely confirmed by the current government bill) through the attempt to harness the judges of the labour courts by requiring them to "take into account" the hypothesis of justified dismissal provided for by collective agreements (an attempt which truthfully is rather pathetic: and to which one must ask which judge has openly disregarded such an obvious duty?);
3) reduce the gap in protection between employees of small-medium and large companies, and employees of micro-enterprises for the same reason;
4) make the realization of these needs, and especially those indicated in the first two points, a pole of attraction for new hires, especially by entrepreneurs or foreign investors.
Let's see how the draft parliamentary bill for the reform of the labour market, currently before Parliament, meets these essential requirements: beyond some interventions which are laudable although on marginal aspects and of little practical relevance such as the introduction of the obligation to provide contextual motivation to the letter of dismissal and a process aimed at rationalizing the effects of the retraction of the dismissal thus facilitating it.
1) The sanction of reinstatement is in fact confirmed - as well as obviously for dismissals based on discriminatory or in any case unlawful motives - also for so-called disciplinary dismissal i.e. due to the worker's shortcomings. In fact, for these reasons, the abstract possibility exists for the judge to choose a purely compensatory sanction, through an indemnity between 12 and 24 months of salary. But this possibility is actually negated by the imposition of reinstatement in cases in which the judge ascertains the "non-existence of the disputed facts" (i.e. the judge excludes the deficiency cited as the reason) or that the dismissal is judged to be disproportionate with respect to the gravity of the alleged deficiency, but considered worthy of a minor "conservative sanction" (as is now made unequivocal by the new text of the bill, which is challenged by Confindustria): which is how to foresee the reintegration for all the hypotheses of illegitimacy of a disciplinary dismissal (we can be proved wrong, but we cannot imagine others). Therefore, beyond the noise and controversy, substantially nothing changes as to redundancies for deficiency in performance: except for a bit of additional confusion (which will make the lawyers happy), and the (virtual) introduction of a legal allowance whose maximum amount will probably work as a parameter for incentives for the consensual resolution of labour relations (a parameter which is probably attractive to larger companies, but - as far as it is - certainly not for small to medium size ones). The replacement of reinstatement by the indemnity penalty to the extent indicated, is instead actually introduced by the draft law as regards dismissals for so-called economic or objective reasons, that is to say, because of the needs of the company. But this is only a possible replacement, which can (and must) be excluded by the judge when he ascertains the "manifest groundlessness" of the reason put forward by the company: an incumbent and impalpable eventuality, because everyone understands that the thin boundary line between the non-existence, and the "manifest" non-existence of the organizational or productive reasons posed by the dismissal, or the non-reusability of the worker in other tasks, can be identified only by scrutinizing the depths of the judge's mind. Moreover, the process of dismissal for justified objective reasons is enriched (so to speak) by the stroke of genius which re-introduces for the relevant controversies (bankruptcy, and therefore repealed by the aforementioned law No. 183 of 2010) the mandatory attempt of conciliation before the Labour Department, within which the entrepreneur must "declare his intention" to dismiss prior to the dismissal: with the natural consequence - in addition to the delays and bureaucratic burdens - that the forewarned worker, if he is not really naive, will immediately become ill, thus preventing the effectiveness of the dismissal. The declared reinforcement of "outgoing flexibility" is, therefore, either purely virtual (disciplinary dismissals), or possibly uncertain, and in any case more than compensated by delays and bureaucratic hindrances (dismissals for objective reasons).
2) The uncertainty, and above all, the unpredictability of the outcome of cases of dismissal, not only are not reduced, but are even aggravated by the attribution to the courts of an unpublished (and, we are sure, not welcome) duty of discretionary choice devoid of any objective parameter between "groundlessness" and "manifest groundlessness" in the justification of a dismissal. The uncertainty is then accentuated by the other ingenious idea of introducing for all redundancies – with a view to "speeding up" the related disputes - a procedure of summary assessment based on the model of the action of repression of anti-union conduct (or urgent procedure, but without the burden of proving the requirement of urgency): A substantially useless choice (because the causes of redundancies usually already have a preferential lane, moreover now imposed by the current bill, and because the dreaded effect of delays in the process on the amount of compensation for unlawful dismissal is already covered by the maximum limit introduced of twelve months), completely irrational (because the causes of dismissals, especially disciplinary dismissals, may require complex investigations completely incompatible with summary investigations), detrimental to the elementary needs of cross-examination and defence for the employer (a minimum period between the notification of the appeal and the hearing of appearance is not even foreseen), disrespectful of the need by the judge to study the case with knowledge of the positions of both parties (not even a deadline for filing of a defensive memo by the employer before the hearing is foreseen) potential harbinger of serious injustices for both parts (not easily remediable in the subsequent opposition phase, which is referred to the same Court that issued the provision in the summary phase and which, as experience teaches, will usually tend to confirm it).
3) The gap between protected or hyper-protected employees and under-protected employees has remained unchanged: except for that Minister who opened a press conference stating, and then reiterating, that the reform for the reinstatement for dismissals based on discriminatory or illicit reasons would also extend to the employees of small businesses, confusing the governmental draft law for an exciting advance with a rule that has existed since 1990 (also for domestic workers), and that is known to any averagely prepared student who sits the examination in labour law. And luckily, they are technocrats.
4) Finally, we should consider the power of attraction of this long-winded and garbled text (and this is nothing new, in labour legislation of the last few years) as a stimulus for new hirings. First of all, to be attracted to something, that something must be known: and this text is already difficult to explain to an entrepreneur (with a foreigner, we would not even try). If you then get to know it, you avoid it.
In short, the proposed reform of article 18 compared to the needs that it should have met, can be defined as a small masterpiece: in the opposite sense.
But, not wanting to appear only critics, we have a constructive suggestion, which is this: if the reform must be done this way, let's hold on to the good article 18, matured for over forty years. Also, in this the Roman dialect is particularly adapted. Not that of the novel by Carlo Emilio Gadda that inspires the title of this article, but that of an anonymous Trasteverino, who having experienced a few months of new born republican democracy after the fall of fascism - traced on a wall in cubital letters, the inscription: "*aridatece er puzzone!" (“Give us back the stinker!”)
Sergio Magrini
Professor of labour law at the University of Rome "Tor Vergata" and Luiss "Guido Carli"
(*Puzzone is the Romans' nickname for the head of the government)
