Legislative decree number 23/2015, introducing the so-called regime for increasing-protection employment, has limited the reinstatement to the null and void dismissal cases, ineffective (because expressed orally), and discriminatory, and also in the hypothetical case where it is legally ascertained that there is no material fact which justifies the dismissal of the worker for just cause. In all the other cases of dismissal, the legislator has, on the other hand, exclusively established monetary compensation, the amount of which has strictly to do with the seniority of the worker: usually two monthly payments for every year of service rendered.
Therefore, for all workers employed after March 7, 2015, the hypothetical cases of reinstatement are in keeping with article 2 of legislative decree 23/15, which, similar to the provisions of article 18, paragraphs 1 and 2 of law 300/70, includes discriminatory and void dismissal, providing for, strictly in such cases, reinstatement protection. However, article 2 of legislative decree 23/15, differs from article 18, paragraph 1, law 300/70, by the absence of a specific list of null and void hypotheses.
Indeed, article 18 says: “The judge (whose sentence declares null and void the dismissal because it was discriminatory according to article 3 of law 11, May 1990, number 108, communicated in connection with marriage, according to article 35 of the Italian Civil Code in reference to equal opportunity for men and women, - legislative decree April 11, 2006, number 198 - or in the case of violating the prohibition on redundancy as in article 54, paragraphs 1, 6, 7 and 9, of the Consolidated Act of the legislative measures for protection and for support of motherhood and fatherhood, as in legislative decree March 26, 2001, number 151, and following changes, because it is linked to other cases of annulment provided for by the law, or determined by an illegal reason, as in article 1345 of the Italian civil code), orders the employer, entrepreneur or non- entrepreneur, to reinstate the worker, independently from the formal adopted reason, and independently from the number of workers employed … The regulations of this article also apply to ineffective dismissal because expressed orally”.
Above-mentioned article 2 of legislative decree 23/15, states, however: “The judge declaring the annulment of the dismissal (because it was discriminatory, as in article 15, law number 300 of May 20, 1970 and following modifications, and because it can be traced back to other cases of annulment expressly provided for by the law), orders the employer, entrepreneur or non-entrepreneur, to reinstate the worker for the same job as before, independently from the reason which was formally adopted”.
According to the currently prevailing orientation, also in increasing-protection agreements, the reinstatement protection rule can be applied in all hypothetical cases indicated in article 18 of the Workers’ Statute, paragraph 1, and therefore also in cases of discriminatory dismissal, as in article 3 law 108/90, when redundancy takes place in connection with marriage, pursuant to article 35, legislative decree 198/2006, as well as in the case of dismissal of female workers in connection with their being pregnant, or within one year of the birth of the child, thereby violating article 54, legislative decree 151/01.
The intention of the legislator in 2015 was to exclude, however, from the application of Art. 2, the so-called cases of “virtual nullity of dismissal”, among which, for example, the dismissal of workers that are absent from work, thereby violating the law, as in article 4, paragraph 1, Law number 146/1990 - which, although being against the law, is not expressly declared null and void by the legislator.
Because of the residual nature of reinstatement protection, the labour section of the Court of Milan, with the sentence on April 8, 2017, therefore excluded the reinstatement on the hypothesis of dismissal, due to invalidity of the probation, as they cannot be admitted in the cases of determinant illicit reason, with application of the first paragraph of article 3, and only of indemnity protection.
As for discriminatory dismissal, in the narrow sense, in which case the law would require reinstatement, Article 2 of legislative decree 23/15 in turn refers to article 15, Law number 300/1970, which includes dismissal due to reasons of affiliation, trade union activity, participation in a strike, political orientation, religion, race, language, gender, handicap, age, sexual orientation or personal convictions of the worker, specifically provided for by that provision.
Article 3, paragraph 2 of legislative decree number 23/2015 therefore requires that in further specific cases (compared to the cases considered in article 2), the worker must be reinstated, when due to disciplinary dismissals made invalid since there are no facts proven against the worker.
On the basis of the initial legal interpretations, literally pursuant to article 3, paragraph 2 of legislative decree 23/2015, the worker who intends to take advantage of reinstatement protection must therefore show that there are no material facts against him or her (see the Court of Naples, labour section, sentence of June 27, 2017).
Along the same lines of interpretation, the labour section of the Court of Monza, with sentence number 190 of May 4, 2017, applied protection by compensation (and not by reinstatement) in the case of general disciplinary dispute, as it is impossible to discern the tangible complaints about the worker, because of the general nature of the dispute.
Consequently, when the employer is not able to produce complete proof of the reasons for making the worker redundant, the sanctions which can be applied will only be in the form of a compensation, since the rules on reinstating can only be applied if the worker is able to show the complete material lack of reason for contesting.
On the other hand, such an interpretation is conformant with, in addition to the above-mentioned norm in article 3, legislative decree 23/15, also the more general principle as in art. 2097 of the Italian Civil Code, according to which the burden of proof will fall on the party who is interested in legally showing the fact. Therefore, according to paragraph 2, article 3, it is the party that is challenging the dismissal that has to show the non-existence of the facts which are contested.
The legislator in 2015 also wanted to preclude any possibility of reinstatement based on lack of proportion of the dismissal in comparison to the worker’s contested behaviour. In keeping with that notion, one must consequently read the precise norm of paragraph 2, article 3, according to which, due to the non-existence of facts, “any evaluation for the proportion of dismissal cannot be feasible”.
For the purpose of being coherent, it is necessary to exclude labour protection when in the collective agreements there is conservative sanction instead of dismissal. Indeed, as opposed to the provisions made by article 18, paragraph 4, law 300/70, paragraph 2 of article 3, legislative decree 25/15 no longer provides for conditions for the application of the reinstatement protection in the form of reinstatement, when such further hypotheses are attenuated.
Legislative decree 23/2015, therefore, providing for reinstatement as an exceptional sanction in the case of illegitimate dismissal, can only be interpreted by including the application of reinstatement protection, only in the limited hypotheses comprised therein. (LP)
