home > Working papers > WP CSDLE M. D'ANTONA > WP CSDLE M. D'ANTONA-IT > Condizionalità ed ipotesi di esclusione (dalla seconda proroga) del blocco dei licenziamenti al tempo del Covid-19: molto rumore per (quasi) nulla (note minime)

Condizionalità ed ipotesi di esclusione (dalla seconda proroga) del blocco dei licenziamenti al tempo del Covid-19: molto rumore per (quasi) nulla (note minime)

WP C.S.D.L.E. “Massimo D’Antona”.IT – 434/2021

Il contributo è destinato alla pubblicazione in Variazioni su temi di diritto del lavoro-VTDL n. 2/2021

1. The prohibition of dismissals at the time of Covid-19 (referred to article 46 of the so-called “Cura Italia” Law, as converted) - only after the second extension (with article 14 of the so-called “Agosto” Law-Decree, as converted) - is subject, for the future, to the condition of the full fruition of salary integration treatments related to the Covid-19 emergency or, alternatively, to the exemption from the payment of social security contributions - and limited, at the same time, by the following exclusion hypotheses:
- dismissals motivated by the definitive termination, as a consequence of the liquidation of the company;
- bankruptcy, when the provisional exercise of the company is not foreseen or its termination is ordered;
- company level agreement, stipulated by comparatively most representative trade unions at national level, in order to favour the termination of the employment relationship, limited to workers who adhere to the aforementioned agreement.
At the same time, hypotheses in which the dismissed employees, already employed in a contract, are hired following the takeover of a new contractor by virtue of law, of the national collective agreement or contract clause are excluded from the prohibition.
2. After an analytical examination of the respective legal definitions - with the purpose to guarantee Job preservation and an anti-avoidance function - conditionality, hypothesis of exclusion and salvation - far from changing the blocking and its efficacy substantially - establish a virtuous evolution - from an original rigidity to flexibility - and at the same time contribute to the “optimization” of the balance - between freedom of private economic initiative and limitations - which leaves out their quantitative equivalence, however hindered - as well as by the serious economic and financial crisis, due to the pandemic - by fundamental principles of our Constitution and of the law of the European Union: a balanced budget (Article 81 of the Constitution, as replaced by Article 1 of the Constitutional Law 20 April 2012, No. 1) - which justified numerous budget variance measures at the time of Covid-19 (five in 2020 and one in 2021) - is combined, in fact, with the ban on state aid to businesses, imposed by EU law and suitably mitigated in the current emergency of COVID-19.
The prospect of an economic recovery after the pandemic - which could receive support and promotion, including in a labour perspective, from the so-called “recovery plan Italy “- and the risk of mass dismissals at the end of the blocking - which could receive assistance, among other things, from the so-called “contratti di espansione”- also testify the state of emergency or exception induced by the pandemic , in which the blocking of dismissals at the time of Covid-19 is registered and should be understood.

author(s): De Luca, Michele
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