The compensation parameter will no longer only correlate with seniority
"The Constitutional Court has declared as illegitimate Article 3, paragraph 1, of Legislative Decree n.23/2015 on permanent employment contracts with increasing protections, in the part - not amended by the subsequent Decree Law n.87 / 2018, the so-called "Dignity Decree" - which dictates the indemnity due to the unjustifiably dismissed worker. In particular, the expectation of an increase in compensation on the basis of the worker's seniority is, according to the Court, contrary to the principles of reasonableness and equality and contrary to the right and protection of work set out in Articles 4 and 35 of the Constitution.
The sentence will be filed in the next few weeks,” states the press release of the Constitutional Court of 26th September 2018.
The intervention of the Consultation therefore concerns the criteria for determining compensation to be specified, in the case of unjustified dismissal of workers under increasing protection, as hired for an indefinite period after the date of 7th March 2015.
The combined provisions of the Jobs Act and the Dignity Decree allow compensation that can vary between a minimum of 6 to a maximum of 36 months. However, this must still be quantified as two months for each year of service (and these amounts should be halved for companies with up to 15 employees).
The parameter of seniority of service, identified by the Legislator as the sole criterion for quantifying the compensation in question, was however considered constitutionally incongruous by the Council.
Pending the reasons, on the basis of the observations contained in the order for remission of the Rome Labour Court, (which was only partially accepted), we can certainly assume that, for the Constitutional Court, this fixed indemnity does not allow the judge to properly assess the damage suffered. Without prejudice to the minimums and the maximums established by law, the magistrates will now be able to use not only the criterion of seniority, but also other parameters, such as the age of the worker, their personal and family situation, and the modalities and / or reasons for dismissal.
The consequence of this intervention by the Council will, however, be a greater discretion of the judge in the quantification of damage. (LC)
