The category of the “material fact” has, entirely unexpectedly, come back into vogue in identifying the protection under Article 18 of Law 300/1970 in the event of an unlawful disciplinary dismissal. This has occurred both in the exegesis of paragraph 4 of Article 18, as reformed by Law 92/2012;[1], and in the new rules issued by the legislative decree implementing the enabling law of 10.12.2014 no. 183 (approved on 20.2.2015 and yet to be published).
The category of the material fact was developed in the wake of the so-called Fornero reform (Law no. 92/2012) which in Article 18 retains reinstatement protection (albeit in its so-called attenuated form), making it subject to the “non-existence of the fact alleged” by the employer as just cause or subjective justified reason.
It was then proposed by several authors[2] to restrict the statutory formula to the sole case of absence of the material fact alleged; meaning, under evident criminal-law influence, only the absence of the material elements of the disciplinary offence (conduct, causal link and event). And consequently confining to the residual category of the “other cases” of compensatory protection (so generically identified in paragraph 5 of Article 18) all the other cases in which, on the other hand, there was no unlawfulness, imputability, wilfulness of the conduct, subjective element and, lastly, there was a lack of proportionality. Even though the absence of this latter requirement may still lead back to reinstatement by another route, whenever the second hypothesis arises, in the presence of which Article 18, paragraph 4, as reformed by Law 92, provides for the operation of the strong protection because the fact is attributable to disciplinary conduct “punishable by a conservative sanction” under collective agreements and disciplinary codes.
The substantive injustice of the material-fact theory, as well as its untenability on the exegetical level – given that the provision speaks of the non-existence of the fact “alleged” (and therefore also comprising other, non-material elements) – had inevitably ended up bringing back within the same reinstatement protection all the cases in which the fact had no disciplinary relevance at all, or was not attributable to the worker, or was not accompanied by the subjective element alleged or by wilfulness of the conduct, or lacked unlawfulness because it was justified.
“The fact alleged” had therefore to be deemed non-existent even if, in the case where theft had been alleged, not only had it never been materially committed, but also if the taking of another’s property had occurred following authorisation, or by mistake, or in a state of unconsciousness or by force majeure or without profit motive. Even though all or some of these (non-material) elements had emerged only in the course of the proceedings, and the employer’s charge had made no mention of them.
This had been, in any event, the unanimous interpretation reached by the case law of the lower courts, without any deviation. So much so that it could well be said that the case law had adhered to the opposite theory of the legal fact ( or of the alleged breach), according to which, for the purposes of reinstatement, one had to look at the set of elements of the fact as alleged and carry out an overall assessment of it, investigating the worker’s psychological attitude and the elements of the legal assessment. Also because, disregarding the assessment of the conduct in light of its legal characterisation, one would end up authorising the termination of the relationship for any sort of allegation; that is, the allegation of any sort of fact, even “fragments of a fact” or facts with little or no legal and disciplinary relevance[3].
There remained the problem of proportionality. But here too – and regardless of the comparison with the more or less typified and exhaustive disciplinary provisions – it was in fact excluded by everyone that any disciplinary infraction of whatever size and value (even if materially existing and for which the worker had to answer, owing to the presence of all the requirements of liability) could give rise to merely compensatory protection: because the theft of a pin or a one-minute delay could never entail, by common interpretation, only compensatory protection whenever they could express a great blunder, a flagrant wrong, a pretextual, abnormal fact, in fraud of the law, etc. According to suggestions which, however, rather than providing solutions, pointed to the existence of a problem that lay upstream, in the statutory formula; it being anything but undisputed that proportionality itself can be excluded from the starting concept (the fact alleged).
On the other hand, the very lack of proportionality of the fact – even in less striking cases than those just considered – still led to reinstatement, through the reasoned comparison that the judge had to establish with the collective provisions (of old or new coinage), which could hardly have confined the variety of disciplinary conduct within typified conservative (or expulsive) provisions. So that there could always arise the case of a minor fact not regulated at the disciplinary level which the judge could certainly not – by an elementary principle of justice – treat worse than a more serious case that is, however, expressly punished with a conservative sanction (e.g. mere non-compliance with a company directive being treated worse than serious insubordination, punished with suspension from work) in the applicable codes.
All things considered, in applying Article 18, as reformed by the Fornero law, a wide path opened up which, through a typical discretionary power of the judge – the interpretation of collective agreements (on whose weight Article 30 of Law 183/2010 had felt the need to draw the judge’s attention, prescribing that he take them into account in judgments on disciplinary dismissals) – comfortably led back once again to the reinstatement of the worker, even in the absence of a disciplinary provision usable for the purpose. A power whose most cogent source was, however, the constitutional norm, proportionality under Article 2106 of the Civil Code being an emanation of the higher guideline of rationality (and justice) that stems from Article 3 of the Constitution.
It is true, however, that on this side of proportionality, not all case law – after the Fornero reform – had sought to embrace and exploit the potential inherent in this wide discretionary power, which can indeed be derived – de plano – from a rationalising and systematic reading of the new Article 18 as regards conservative disciplinary sanctions. Some judges had translated the statutory wording into the rigid scheme under which, if the fact (legal fact, that is, the breach) alleged existed but was not serious (on the objective plane or in terms of the degree of the subjective element), only compensatory protection could be guaranteed – in the absence of a conservative disciplinary provision useful for the purpose. A renunciatory and self-limiting thesis, which was justified, more than anything, on the basis of the intentio legis of making the relationship more flexible on exit (as already expressed in Article 1 of Law 92/2012); and above all for reasons of interpretive symmetry, that is, the need to give an area of application also to the provision for compensatory protection, which otherwise would have none.
Court of Cassation judgment no. 23669 of 06/11/2014
On the issue in question the Court of Cassation intervenes with judgment no. 23669 of 06/11/2014. The case concerns a bank manager reinstated by the Court of Appeal of Venice owing to the lack of habituality of the disciplinary conduct alleged by the employer. The Court of Cassation confirms the absence of the fact alleged in the historical dimension of habituality, as adequately reasoned by the Court of Appeal, and therefore dismisses the appeal. In particular, the Court of Venice (judgment of 12.12.2013) had found that the evidence supporting the charge was lacking, was contradictory and was in any event insufficient to prove the fact as alleged by the employer (that is, as habitual conduct); and had therefore reversed the different solution adopted by the Court of Padua (which had decided under the summary procedure and at the opposition stage).[4]
Once it had been excluded that the fact as alleged existed, the Court of Cassation was not asked to clarify the correct scope of the notion itself, nor whether, for the purposes of reinstatement, a restrictive reading (material fact) or an extensive one (legal fact) of the element in question was required. The legal reason for the decision taken by the Court therefore did not depend on the analysis of the concept (material or legal) of fact. There was no need to rule on the point. Nevertheless – by way of an obiter dictum – the judgment resurrects the much-discussed category and states in sequence: that Article 18 has adopted the notion of material fact, that the judge has no discretionary powers in this respect, and that the proportionality of the charge lies outside the fact.[5] These are, however, unreasoned statements. The judgment merely takes sides, but without a crumb of justification. It does not say when the material fact is present and what there is in the material fact. It does not say whether, for example, the lack of the subjective element, of unlawfulness, or of disciplinary relevance leaves the fact alive or nonetheless produces its non-existence. It does not take into consideration the debate that developed after the reform under Law 92/2012. It adds that proportionality is not part of the fact. But here too it does not hint at a single reason why. It says that the judge has no discretion in this respect, but does not consider that all disciplinary codes contain clauses of gradation (“in the most serious cases”), and in any event generic and elastic provisions, which modulate the conduct envisaged therein into various degrees (serious, medium, minor) through the mediation of the interpreter, to whom they therefore leave wide discretion. In any case these are not questions that can be settled with a hatchet, as the judgment of the Court of Cassation held.
Among the many problems induced by the new wording of Article 18[6] the only one easily overcome by the case law had been that of the fact. Thanks to this judgment of the Court of Cassation and to the instrumentalisations that will inevitably follow (by employers’ defence counsel) in proceedings, a new front of discussion has been reopened. Judges will be required to explain how and why the thesis upheld by the Court of Cassation is or is not justified.
On the other hand, it should also be observed that the Court of Cassation, in confirming the judgment of the Court of Appeal of Venice, seems to maintain that the habitual nature of conduct crystallises the allegation also from the historical point of view; so that if it is lacking, not only is the seriousness of the just cause lost, but the material elements of the conduct alleged are also lacking. If, therefore, disciplinarily relevant conduct derives from its repetition the seriousness that reaches just cause, it would not be enough to ascertain that the conduct was committed on some sporadic occasion for the material fact to exist.
In reality, on this point too the question has not been expressly clarified, as it deserved. Also because, for the purposes of terminating a relationship, someone could always argue that the repetition of the offence is an element that pertains to the dimension of the seriousness of the breach and not to the material fact.
Material fact and the Jobs Act
The category of the material fact has then returned to favour in the legislative decree of the so-called Jobs Act (approved by the Government on 20.2.2015 and awaiting publication)[7].
While there was a debate, with some difficulty, on how to translate into a binding rule the formula of the enabling law (Article 1, paragraph seven, of the enabling law of 10.12.2014 no. 183) which limits the right to reinstatement “to specific cases of unjustified disciplinary dismissal”, the delegated legislator perhaps thought to square the circle thanks to the providential reasoning of the judgment of the Court of Cassation no. 23669 of 06/11/2014, referred to above. And with a formula which echoes, also on the lexical level, the words used in the judgment, it has established (Article 3, paragraph 2) that the judge must order reinstatement exclusively in the case of “non-existence of the material fact alleged against the worker, in respect of which any assessment as to the disproportionality of the dismissal remains extraneous”.
It cannot be said, this time, that the legislator was not aware, or that it ignored what lies behind this formula. If it used it, it should then be held that it did so with full knowledge of the facts; knowing and intending to authorise the results that it is capable of achieving.
Therefore, in the new model of open-ended contract with increasing protection, the lack of a subjective element, or of unlawfulness, or of disciplinary relevance, or the presence of force majeure, should lead de plano to the termination of the relationship with compensatory protection (within the range of 4 to 24 months’ pay), since these are cases that do not entail the disappearance of the fact in its material dimension. In the new regime, therefore, the dividing line between real protection and an indemnity of even just 4 months’ pay would depend only on whether the employer has attributed to the worker a true material fact; whether the worker is then not responsible on the subjective plane or even because of the irrelevance of the fact should carry no weight for the purposes of reinstatement protection.
Against this paradoxical outcome, however, there are serious reasons of rationality and justice deriving from the labour-oriented framework of our Constitution. It will therefore fall to interpreters to work to overcome at least the most pernicious consequences inherent in the new rules outlined in the implementing decree of the Jobs Act, and to bring back within reinstatement protection also cases that certainly do not concern the material fact (such as the irrelevance in iure of the fact, the lack of the subjective element, the fact justified by a defence, or subject to force majeure).
It is inevitable that this will happen. Also because the legislator cannot grant reinstatement only for the lack of the material fact and not grant it (arbitrarily) for the lack of the subjective element, of unlawfulness and of the disciplinary relevance of the conduct. It cannot do so because the provision would be gravely suspect on constitutional grounds. Once the diversity of protections is maintained, the distinction between one and the other must pass through a fair and rational criterion, which does not appear to be met by the mere lack of a material fact.
Even those who have no doubts[8] that material fact means “a fact purged of any legal characterisation”, and that therefore it cannot include a fact that exists but is “devoid of any disciplinary nature” or “not attributable” to the worker pursuant to Article 1218 of the Civil Code (“because committed without fault or by force majeure”), must then recognise that it is necessary to admit reinstatement also in these latter cases, in which what matters is the “legal characterisation” of the fact as attributable or committed without fault: also because otherwise “the dismissal would be entirely lacking in reasons and therefore, if not void, certainly deserving of the most substantial sanction”.
However, the defect of reasoning cannot be confused with that of justification; nor with the prerequisites for reinstatement protection, now restricted by the legislator “exclusively” to the lack of the material fact. Even a disciplinarily irrelevant or blameless fact can, in fact, satisfy the formal requirement of reasoning, without reinstatement deriving from this. But if the fact alleged is not a disciplinary infraction or a culpable fact, it must be said that the fact is non-existent not from the material point of view, nor from the point of view of reasoning, but precisely from the disciplinary point of view, which is an eminently legal perspective.
If we arrive at all this once again (thanks to constitutionally oriented interpretation or through constitutional review), as the first comments on the legislation also suggest[9], then it can be said that the legislator has, in some respects, once again attempted an ill-advised bluff. Like a player in difficulty it merely raised its voice, but then – hoping for a ruling of the Court of Cassation – put on the table the card of the material fact, which is however worth little; above all because it has to reckon with the other players sitting at the table, who are called upon to establish how much it may be worth.
The new rules on the lack of proportionality of a disciplinary dismissal also give rise to heavy misgivings. According to the clear wording of the provision (Article 3) of the decree implementing the enabling law, the lack of proportionality of the dismissal precludes the judge from granting reinstatement protection (“any assessment as to the disproportionality of the dismissal remains extraneous”). It is difficult not to highlight some aspects of irrationality here too. Above all, whenever the disciplinary code provides for that conduct a mere conservative sanction (e.g. a reprimand), the judge who declares the dismissal unlawful will in any case be unable to grant reinstatement. Thus not even manifest and knowing abuse in the use of the disciplinary instrument can serve the purpose. Not even what used to be called the flagrant wrong owing to the explicit provision of a conservative sanction – perhaps referred to in the disciplinary charge procedure – will be able to lead to reinstatement; unless the judge identifies a case of unlawful, pretextual or discriminatory dismissal.
On the other hand, however, the problem remains of the grossly disproportionate breach “bordering on the irrelevant”[10]; it being entirely obvious that allowing the termination of the employment relationship for a macroscopically minor fact (e.g. a delay of a few minutes) would introduce serious disparities into the legal system. Also in this case, therefore, the corrective of the pretextual, abnormal, glaring fact would be required, already conceded for reasons of equity by those who, in the Fornero version of Article 18, (likewise) assign no role to the proportionality assessment (in the absence of a conservative provision) for the purposes of reinstatement.
On the other hand, having excluded any role for the proportionality assessment gives rise to further problematic aspects in the soundness of these rules, not only in terms of the type but also in terms of the amount of the sanction. In this respect too the law has deprived the judge of the role of modulating the sanction, and the principle of proportionality carries no weight: the compensatory indemnity being rigidly tied to length of service whatever the extent of the fact committed. So much so that the introduction of a variable component of the indemnity, adjustable in light of the specific case, has already been called for.[11] If one then considers that the indemnity is insensitive to the passage of time, including procedural time, and that at the same time this law has eliminated for new contracts the fast-track procedure introduced by the Fornero law, it is evident how much the worker’s position is aggravated by the Jobs Act, the worker being in essence given to understand that he cannot expect much from access to judicial protection.
Proof of the non-existence of the material fact
But there is another point that casts disquieting shadows on the wording of the approved legislative decree, where, in relation to disciplinary dismissal, it prescribes that real protection is admissible only if the proof of the non-existence of the material fact is directly demonstrated in court (Article 3, paragraph 2).
It has been said that this is not a rule of a novel character compared with the rules that can be derived from Article 5 of Law 604/66.[12] In reality, on this point too the law contains a clear normative formula to which it will hardly be possible to deny an innovative effect. Since there is no doubt that there is a difference on the legal plane between direct and indirect evidence. Therefore, once it is established that the material fact does not exist because there is no proof of its existence, and the lack of just cause is accordingly declared, if the proof of the lack of the fact is not direct but only presumptive, not full but derives from the application of the rule of judgment under Article 2697 of the Civil Code, the judge – according to this provision – should not grant reinstatement but only compensatory protection. The insufficiency of proof will in essence fall on the worker through a regime that has no equal in labour law and that overturns the substance of Article 3, paragraph 2 of the Constitution.
It is certainly true that, under Article 5 of Law 604/1966, not touched by these rules, the burden of proving the justification of the dismissal still lies with the employer (also in relation to the principle of proportionality). But the legislation under discussion concerns, literally and logically, the identification of the protection, which is a phase subsequent to the verification of the justification of the dismissal. And therefore, the unlawfulness of the dismissal having already been established, at the time of identifying the protection the judge should order reinstatement only if proof of non-existence emerges, that is, (negative) proof that the fact does not exist; whereas the lack of (positive) proof of the existence of the fact would not suffice. And moreover the negative proof will have to be direct, that is, not based on presumptions. Reinstatement cannot be granted on the basis of the lack of proof of the facts alleged by the employer; so that if the worker does not have evidence that can directly demonstrate the non-existence of the fact, he cannot be reinstated.
It is certainly difficult to recognise a glimmer of logic in this esoteric formula employed by the decree; light years away from the scale of constitutional values and from a conception of law corresponding to the canons of normal justice[13]. It will be enough to hypothesise the most improbable accusations, unverifiable, abstruse allegations, for a worker to be unable to have direct proof of the non-existence of the material fact.
These are reservations that are bound to grow if one considers that we are in the field not of economic dismissals – which concern the sizing and organisation of the business, discretionarily reserved to the employer – but of disciplinary dismissals, which amount to “private penalties” inflicted by one contracting party on the other; and which should therefore, by unanimous interpretation (from the Constitutional Court downwards), be subject to “indispensable principles of civilisation”.
[1] Publications on disciplinary dismissals after Law 92/2012 are numerous: M. DE LUCA Riforma della tutela reale contro i licenziamenti al tempo delle larghe intese: riflessioni su un compromesso necessario, in Riv. It. Dir. Lav., 2013, 3 et seq. A. L. TERZI, La disciplina dei licenziamenti disciplinari, in La Legge 92 del 2012 ( Riforma Fornero ) edited by Fabrizio Amato and Rita Sanlorenzo, in vww. Magistratura Democratica.it; A. PALLADINI, La nuova disciplina dei licenziamenti, in RIDDL, 2012, 653; P. TULLINI, Riforma della disciplina dei licenziamenti e nuovo modello giudiziale di controllo, in Riv. It. Dir. Lav., , 147 et seq. ; A. Maresca, Il nuovo regime sanzionatorio del licenziamento illegittimo: le modifiche all’art. 18 Statuto dei lavoratori, in Riv. It. Dir. Lav., 2012, 1, p. 436 et seq.; ; F. Carinci, Complimenti dottor Frankenstein: il disegno di legge governativo in materia di riforma del mercato del lavoro, in Lav. Giur., 2012, 6, p. 529 et seq. and in http://csdle.lex.unict.it/, Il dibattito sulla riforma italiana del mercato del lavoro, as well as, F. Carinci, M. Miscione (eds), Commentario alla riforma Fornero, in Dir. Prat. Lav., supplement no. 33, of 15 September 2012 F. CARINCI, Il legislatore e il giudice: l’imprevidente innovatore ed il prudente conservatore, (in occasione di Trib. Bologna, ord. 15 ottobre 2012), and most recently F. CARINCI, Ripensando il “nuovo” art. 18 dello Statuto dei lavoratori, forthcoming; A. PERULLI, Fatto e valutazione giuridica del fatto nella nuova disciplina dell’art. 18 St. lav. Ratio ed aporie dei concetti normativi,in Arg. dir. Lav. 2012, V. SPEZIALE, La riforma del licenziamento individuale tra diritto ed economia, Riv. It. Dir. Lav., 2012. 552 et seq.; C. Cester, Il progetto di riforma della disciplina dei licenziamenti: prime osservazioni, in Arg. Dir. Lav., 2012, 3, p. 573 et seq.; A.VALLEBONA, in La riforma del lavoro 2012, G. Giappichelli Editore, 2012, p. 57. M. Marazza, L’art. 18, nuovo testo, dello Statuto dei lavoratori, in Arg. Dir. Lav., 2012, 3, p. 622;. M.T. CARINCI Il licenziamento non sorretto da giusta causa e giustificasto motivo soggetivo: i presupposti applicativi della tutele previste dall’art.18 St. Lav. alla luce dei vincoli imposti dal sistema, In RIDDLç 2012 1052 R. DE LUCA TAMAJO, Il licenziamento disciplinare nel nuovo art.18; una chiave di lettura, in RIDDL 2112, 1064; R.ROMEI, La prima ordinanza sul nuovo art.18 della l.n.300/1970; tanto rumore per nulla? ibid., 1072; R. PEZZUTO L’insussistenza del fatto nel licenziamento disciplinare dopo la legge Fornero, in il Lavoro nella Giurisprudenza 2013,454; A. MARCIANO’ Fatti contestati e formule assolutorie. Le ambigue soluzioni legislative in materia di licenziamento e le previsioni correlate del codice di procedura penale, Il Lav. nella Giur. 2013, 445 et seq. R.RIVERSO Alla ricerca del fatto nel licenziamento disciplinare, in CSDLE, Il dibattito sulla riforma italiana del mercato del lavoro, 22.11.2012. P. SORDI , Il nuovo art.18 della legge n.300 del 1970, in La riforma del lavoro, edited by L. Di Paola, Milan, Giuffrè, 2013.
[2] V. A. Maresca, Il nuovo regime sanzionatorio del licenziamento illegittimo: le modifiche all’art. 18 Statuto dei lavoratori, in Riv. It. Dir. Lav., 2012, 1, p. 436 et seq.; M. PERSIANI, Il fatto rilevante per la reintegrazione del lavortore illegittimamente licenziato, in ADL 2013,1 et seq. , R. DE LUCA TAMAJO, Il licenziamento disciplinare nel nuovo art.18; una chiave di lettura, in RIDDL 2112, 1064
[3] A. PERULLI, Fatto e valutazione giuridica del fatto nella nuova disciplina dell’art. 18 St. lav. Ratio ed aporie dei concetti normativi,in Arg. dir. Lav. 2012, V. SPEZIALE, La riforma del licenziamento individuale tra diritto ed economia, Riv. It. Dir. Lav., 2012. 552 et seq.;
[4] And it is worth pointing out – at a time of widespread opposition to the so-called Fornero special procedure – that the three proceedings were concluded in barely a year or so.
[5] This is the passage under discussion: “Reinstatement arises in relation to the verification of the existence/non-existence of the material fact on which the dismissal is based, so that this verification is resolved and exhausted in the finding, positive or negative, of the fact itself, which must be carried out without margins for discretionary assessments, with regard to establishing whether or not the fact whose existence is at issue exists, to be understood as a material fact, with the consequence that any assessment relating to the profile of the proportionality of the sanction with respect to the seriousness of the conduct alleged falls outside the scenario that underlies reinstatement.
[6] For example, and without claiming to be exhaustive, the boundaries are still unclear between unreasoned dismissal, which the law classifies as ineffective, and unlawful or unjustified dismissal for lack of the fact (which seems to postulate a fact alleged as just cause or put forward as an objective justified reason). The relationship between unreasoned dismissal (which remains such even in the proceedings) and discriminatory dismissal is unclear, if it is true that the latter can today be established on the basis of factual elements freely selected by the judge, which shift to the defendant the burden of proving the non-existence of discrimination (under Article 28, paragraph 4 of Legislative Decree 150/2011). The boundaries of the nullity of dismissal are unclear (what the various cases are; some bring within it, through fraud on the law, even cases of disciplinarily relevant facts, merely because they are minor or very minor). The rules on dismissal for unlawful motive are unclear. In particular whether the exclusivity of the unlawful motive is required. The classification of dismissal by way of retaliation is unclear. For some it is comparable to discriminatory dismissal; for others to dismissal void for unlawfulness of the cause; for others to dismissal for unlawful motive. It remains to resolve the problem of manifest non-existence and of the discretion of the judge (may) in dismissal for gmo (objective justified reason). Inconsistencies exist in the protections that are ultimately outlined for dismissals notified in small as compared with large businesses (for ineffective dismissals or those in breach of the disciplinary charge procedure). It is unclear in which box to place the case of dismissal for age limits if retirement does not occur; in which category of defects to place the challenge to the dismissal underlying the conversion of an irregular relationship (cocopro, etc.) in the absence of notice. There is much discussion about the role played by the lack of promptness in disciplinary dismissal.
[7] On this see the well-founded reservations of A. Terzi, Jobs Act , le modifiche all’art.18 dello Statuto: le vere ragioni, le conseguenze concrete, in Questione Giustizia on line.
[8] As Marco Marazza, Il regime sanzionatorio dei licenziamenti nel Jobs Act ( un commento provvisorio dallo schema al decreto) in WP CSDLE “Massimo D’Antona”, IT – 236/2015.
[9] In addition to M. Marazza, cit., see also the well-founded observations of G. Mimmo, Appunti su schema di decreto legislativo (attuazione della legge delega 10 dicembre 2014 n. 183, typescript, unpublished, which notes that the “material fact alleged, in order to be such, must have disciplinary relevance and constitute a case of breach of contractual obligations”.
[10] F. Carinci, Un contratto alla ricerca della sua identità: il contratto a tempo indeterminato a tutele crescenti; in WP CSDLE Massimo D’Antona.
[11] M. Marazza, Il regime sanzionatorio, cit., albeit together with the proposal of a total and definitive abolition of reinstatement even in disciplinary dismissals: as if an indemnity, even one that can be modulated by the judge, could ever compensate for the loss of a job for a disciplinary fact that never existed or was never committed.
[12] G. Mimmo, Appunti su schema di decreto legislativo (attuazione della legge delega 10 dicembre 2014 n. 183, typescript, unpublished, p
[13] M. Marazza, Il regime sanzionatorio, cit, judges “in some respects excessive” the effect produced by this provision. Whereas for F. Carinci, Un Contratto alla ricerca, cit. it is “an extra that seems to have slipped from the pen” which configures a reversal of the burden of proof onto the worker.
Source:http://www.altalex.com/index.php?idstr=38&idnot=70506
Leave a Reply