ITA 
Constitutional Court no. 183/2022.
A reform of the regulations on the compensation indemnity provided for by the so-called Jobs Act for illegitimate dismissal in small company is now a matter of urgency. A further continuation of the legislative inertia on the matter “would no be tolerable” and would induce the Constitutional Court, if once again called upon to do so, to provide directly, despite the difficulties presented in the judgment.
This is the warning that the Constitutional Court addressed to the legislator in its judgment no. 183 of 22 July 2022, while declaring inadmissible the Court of Rome’s censures on the indemnity provided for the Jobs Act for illegitimate dismissal in small company.
According to the Court, in fact, an indemnity such as determined by Legislative Decree 23/2015 within the narrow gap between a minimum, of three and a maximum of six months’ salary “frustrates the need to adjust the amount to the specificity of each individual case, with a view to providing appropriate compensation and effective deterrence, which takes into account all the relevant criteria set out in the judgment of this Court and contributes to configure the dismissal as an extrema ration”. Without mentioning that the limited gab between the minimum and the maximum identified “confers a preponderant, if not exclusive, importance on the number of employee, which, on closer inspection, does not in itself reflect the actual economic strength of the employer, nor the seriousness of the arbitrary dismissal and does not even provide plausible parameters for a liquidated damages that approximates to the particularities of the concrete events”.
In fact, the uniform and insurmountable limit of six months’ pay, which applies to employers alike, operates with reference to heterogeneous activities, which are united by the number of employees employed, a figure that is “devoid of any significant value in itself”.
In conclusion, continues the Constitutional Court, such a system does not implement that balanced balancing of opposing interests, which is the primary function of an effective indemnity protection against unlawful dismissal.
It must therefore be acknowledged that “the actual existence of the harm denounced by the petitioner must be recognised and the need must be affirmed for the legal system to provide appropriate remedies for unlawful dismissals announced by employers who share the same number of employees”. However, as stated in the judgment, the Court cannot remedy the breach but is up to the legislature to intervene.
