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The Constitutional Court, in the judgment no. 22/2024, declared the illegitimacy of Article 2(1) of Legislative Decree no. 23 of 4 March 2015, only as to the word “expressly”. This provision was held to be constitutionally illegitimate because it limited reinstatement protection only to dismissals notified in breach of rules when nullity was “expressly provided for by law”.
The Supreme Court, remitting the matter to the Constitutional Court, posed the issue of unconstitutionality with reference to Article 76 of the Constitution, for violation of the delegation criterion, established by Article 1(7)(c) of Law No. 183 of 2014 (so-called Jobs Act) as to sort out if, in the case of a null dismissal, declared as such on the basis of a general nullity, the protection should be also based on the award of an indemnity or the stronger reinstatement protection should be applied.
The Constitutional Court found the claim to be grounded, pointing out that the reference to "null dismissals" in the text of the enabling act did not provide for any distinction between expressly provided nullities and the other types of nullities for the scope of applying the reinstatement, foreseeing only the possibility for a distinction for unjustified disciplinary dismissals.
As result of the declaration of unconstitutionality limited to the word “expressly”, the protections associated to null and void dismissal are the same, whether the mandatory provision violated contains the express sanction of nullity or whether it is not textually provided for, as long as the nullity falls under general categories.
The content of this document is for information purposes only and is not and cannot be intended as legal advice on the topics dealt with. For further information please contact Francesco Deplano and Susanna Pagannone.
