First reflections on the draft legislative decree and dismissal on contract of employment for an indefinite period "to increasing safeguards" (implementation of delegated law n. 183 of December 10, 2014).

12 Gennaio 2015

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In the Council of Ministers of 24.12.2014 was approved the draft Legislative Decree (the final text is not yet enacted) concerning the introduction of new rules on dismissals and the so-called contract of employment for an indefinite period "to increasing safeguards", thus giving a first implementation of the delegated law n December 10, 2014. 183, in particular as regards the guiding principles and criteria from the latter foreseen in the sense of:

1. limit the reintegration in the workplace at Sun hypothesis of discriminatory dismissal, the dismissal null and void and some disciplinary dismissal unjustified assumptions;
2. exclude the reinstatement for dismissal for objective justification;
3. provide a predetermined economic compensation by law, without any possible discretionary assessment of the judge, but connected only to the length of service.

But now we come to the most important standards that emerge from reading the text of the draft decree in question, consisting of 12 articles.

Art. 1 defines the scope of application of the new rules, thus establishing that they apply only to contracts concluded after the entry into force of the Legislative Decree, with the consequence that all existing agreements that will continue to apply art. 18 of law No. 300/1970 (Statute of workers).

This situation will therefore at two distinct disciplines (new decree and "old" art. 18) to potentially coexist for a long time, i.e. until all natural labor contracts signed to date, but will result in a distinction of rules and protections for workers in the face of a dismissal (think the hypothesis of collective dismissals of workers hired both before and after the entry into force of Legislative Decree: for the first discipline shall apply to articles. 18 300/1970 law and law No. 8 ella 604/66, while for the latter it will apply the new rules).

The situation is further complicated by the fact that the second paragraph of art. 1 under consideration States that the new legislation also applies to workers hired previously since the entry into force of legislative decree if the employer has gone from a staff of 15 or fewer employees to a higher number, as a result of assumptions made after the entry into force of the Decree.

Art. 1, also provides that the new rules would apply only to workers, employees or executives. This expression, which can apparently seem redundant, indeed aims to exclude expressly the executives from the application of the new rules, which will continue to apply the first paragraphs you art. 18, also for contracts concluded after the entry into force of the Decree.

Another important novelty is the disappearance, in identifying the scope of the standard, every company size reference. The new framework for new contracts, will apply equally to all companies with more than 15 employees or less.

A mention should be made to the public service. Following the adoption of the draft legislative decree faced the media debate between politicians about the applicability of the new rules to civil servants. From a purely technical point of view, unless corrective action that will be introduced, we cannot but highlight as there are reasons to argue that employees of p.a. are excluded from the scope of the new guidelines.

Art. 2 discipline discriminatory dismissal, invalid and ordered orally. The rule essentially reproduces the first 3 paragraphs of the current art. 18, introducing some changes, in particular by abandoning the case list of nullity and referring only to the hypothesis of "discriminatory dismissal or due to other cases of nullity expressly provided for by law", i.e. advised redundancies in oral form.

In such cases, the penalty remains of reintegration, in addition to compensation consisting of a fine commensurate with the global final salary in fact gained from dismissal until the effective reinstatement as the employee deducted have to perform other tasks. In any case the allowance cannot be less than 5 months.

Art. 3 is the most interesting and perhaps rule the cases of dismissal for just cause or for good cause, in that it provides protection only when workers indemnity is established in the judgment of dismissal was unlawful because it does not meet the objective justification, or of subjective justification or due cause. In such cases, the protection is only for compensation commensurate with, without any discretion of the Court on this point, two month of final salary in fact global, multiplied by years of service (so, for example, if a worker has 5 years of service, the allowance will be 10 month: month 2 x 5 years). In any case, the compensation will never be less than four and more than 24 months. The following art. 8 of the draft decree provides that for the purposes of calculating length of service should take account proportionally too months and fraction of a month.

Now, the second paragraph of art. 3 establishes that protection may be applied reintegratoria "exclusively" in the event of dismissal for just cause subjective or for cause "where either directly demonstrated in the absence of material fact alleged against the employee, that remains outside any assessment about the disproportion of dismissal".

The rule has a significant capacity and overcoming legal uncertainties that have arisen as a result of the reform Fornero art. (Law No 18. 92/12), fits into the path traced by a recent judgment of the Supreme Court (b. the 6.11.2014 23669) with which the Supreme Court had clarified how the reintegration in the workplace should be placed only in relation to the assessment of the existence of non-material fact-challenged the worker and not the fact "legal" (i.e. at the event with an event that is provided by CCNNLL the disciplinary sanction of dismissal, rather than a conservative penalty).

Of course, none of the material fact in dispute, the legislator intends to refer to cases in which the outcome of the preliminary activity carried out, the fact that the employer objected to the worker (for example theft or absence without leave) shall be deemed not to exist or because you are not physically verified, that is why, even if that occurred, is not attributable to the employee (e.g. because he committed by others).

Technically, the legislature opted for a choice certainly clear and precise. Perhaps you could create some uncertainty formulation application it should be "directly demonstrated the absence of material fact" in particular as regards the burden of proof. On the one hand, it would seem that direct evidence is required about the absence of fact, thereby forcing the worker a particular burden of proof on this point, without recourse to indirect evidence or presumptions. On the other hand, however, might well argued as the allotment of the burden of proof is not changed as a result of this new discipline, it being the giver of work the task of proving the existence of just cause for dismissal and therefore try, among other aspects, the existence of a material fact in dispute.

It only remains to wait for concrete applications that make practitioners.

However, the protection referred to in reintegratoria coma 2 of art. 3 also provides for compensation to the extent of 12 monthly instalments, accrued by the employee from the date of the dismissal to the actual reinstatement.

Il comma 4 dell'art. 3 provides that for workers recruited after the entry into force of legislative decree does not apply to the procedure of prior conciliation attempt pursuant to art. Law 7/604 (66 and introduced by law No. 92/12) for layoffs for justified objective reason provided by companies with more than 15 employees.

Art. discipline 4 the consequences of purely formal and procedural defects of the dismissal, in which case the corresponding indemnity protection providing half that under art. 3, first subparagraph. In this case the compensation is at least two months, and the maximum is 12.

Art. 6 introduces and the obvious purpose of litigation offset deflation, the possibility that the employer offers conciliatory, title check, an amount equal to a month's salary for every year of service, in any case not less than two months ' rent and not exceeding 18 monthly instalments (amounts reduced by half for businesses with fewer than 15 employees). The main innovation consists in the fact that the offer must be made within 60 days after the notice of dismissal and that the amount offered is tax-free.

The principal limitation of the amount indicated above is obviously connected to the tax exemption. Well might the employer offer a larger sum at 18 months ' rent, but the tax exemption would still be limited to the maximum amounts set out in the standard.

Cheque acceptance by the worker entails the termination of the employment relationship and the waiver of appeal against dismissal.

Art. 9 provides that for employees with fewer than 15 employees remains the only protection indennitaria (as indeed it still is), but with the clarification that it is not art. 3, paragraph 2, with the consequence that even in cases of disciplinary dismissals is not incurred the material fact disputed reinstatement is not provided, but only damages, equal to a fine reduced by half than expected for companies with more than 15 employees, so no more than 6 months ' and, so it would seem , not less than one month.

When you sell, for employees of small businesses, there is only reintegratoria protection in the event of discriminatory dismissal, invalid or verbal (while, as we have seen, for medium to large enterprises, the possibility remains of reintegration following disciplinary dismissal unlawful for lack of material fact).

Art. 10 introduces another important novelty with regard to collective redundancies, for which, subject to (somewhat abstract) hypothesis of collective redundancy devoid of writing, for which the reinstatement is provided solely and exclusively indennitaria protection by applying to such types of dismissal of art. 3, paragraph 1, of the Decree, i.e. merely protection indennitaria.

Art. 12 Finally, expressly provides that the layoffs covered by Legislative Decree does not apply more the rite under art. 1, paragraphs 48-68, of law No. 92/2012 (c.d. "Rite Fornero"). The arrangement may appear superfluous because the so-called Fornero Rite itself presupposes the application of art. law 18/70 and 300 cannot be applied for different questions, then surely the rules of legislative decree were already outside that scope, however art. 12 thus excludes any possible uncertainty on this point.

Nevertheless, we cannot fail to point out that the applicability of the new rules only to contracts concluded after the entry into force of the Legislative Decree, while it remains without prejudice to art. 18 for old contracts, will can also coexist, as well as procedural rules of substantive rules, in the case of a single or multiple or collective dismissal for subjects taken before or after the entry into force of legislative decree.

They are not however to exclude future legislative measures designed to coordinate and better address these issues.