Article 18 of the Workers’ Statute (Statuto dei lavoratori), in the form amended by the 2012 Fornero reform, which provides for less protection in the event of dismissal, also applies to the public administration. So says a judgment of the Court of Cassation, effectively reopening the debate on the validity for public employees of the rules contained in the Jobs Act, which changed Article 18 once again and introduced the open-ended contract with increasing protection.
THE PARADOX
Paradoxically, judgment no. 24157 of 2015 rules against the employer, confirming the unlawfulness of the dismissal established first by the Court of Trapani and then by the Court of Appeal of Palermo. But in doing so, it argues that the application of Article 18 as amended to the case in question is «undeniable»; it then declares that the particular reason for which the dismissal is void requires reinstatement rather than compensation, that is, the sanction whose use the Fornero reform aimed to extend. The case concerns a manager of the Consorzio Area sviluppo industriale of Agrigento who in 2012 had been subject to disciplinary dismissal. The dismissal was subsequently declared void because the relevant procedure had been initiated, investigated and concluded by a single member of the disciplinary proceedings office, which should instead have a collegiate composition of three members. This circumstance is enough to annul the measure, as also confirmed in the Court of Cassation’s judgment: however, the Court also ruled on another ground of appeal, namely whether or not Article 18 is applicable to public employees. And the conclusion is that the provision of the Workers’ Statute applies, as amended in 2012, «even irrespective of the legislative harmonisation initiatives envisaged by the Fornero law». The 2012 law itself, however, provided – in the event of a void dismissal – for the sanction of reinstatement in the case of «contravention of mandatory rules», in this specific case those that lay down the procedural requirements, which were not complied with. That said, the judges rule out that it is necessary to bring the case before the Constitutional Court.
THE PARADOX
Paradoxically, judgment no. 24157 of 2015 rules against the employer, confirming the unlawfulness of the dismissal established first by the Court of Trapani and then by the Court of Appeal of Palermo. But in doing so, it argues that the application of Article 18 as amended to the case in question is «undeniable»; it then declares that the particular reason for which the dismissal is void requires reinstatement rather than compensation, that is, the sanction whose use the Fornero reform aimed to extend. The case concerns a manager of the Consorzio Area sviluppo industriale of Agrigento who in 2012 had been subject to disciplinary dismissal. The dismissal was subsequently declared void because the relevant procedure had been initiated, investigated and concluded by a single member of the disciplinary proceedings office, which should instead have a collegiate composition of three members. This circumstance is enough to annul the measure, as also confirmed in the Court of Cassation’s judgment: however, the Court also ruled on another ground of appeal, namely whether or not Article 18 is applicable to public employees. And the conclusion is that the provision of the Workers’ Statute applies, as amended in 2012, «even irrespective of the legislative harmonisation initiatives envisaged by the Fornero law». The 2012 law itself, however, provided – in the event of a void dismissal – for the sanction of reinstatement in the case of «contravention of mandatory rules», in this specific case those that lay down the procedural requirements, which were not complied with. That said, the judges rule out that it is necessary to bring the case before the Constitutional Court.
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Source: il Messaggero.it
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