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28/11/2012

Giusta causa e giustificato motivo dopo la riforma dell’art. 18 dello Statuto dei lavoratori

WP C.S.D.L.E. “Massimo D’Antona”.IT – 165/2012


Il saggio verrà pubblicato, con il titolo Il licenziamento per giusta causa e giustificato motivo, nel volume di P. Chieco (a cura di), Flessibilità e tutele nel lavoro. Commentario della legge 28 giugno 2012, n. 92, Bari, Cacucci, 2013.


The essay analyzes the recent reform of article 18 of the Workers’ Statute. After contesting opinions on the relationship between the reduction in job employment protection and growth in employment levels and the quality of labour contracts, the author underlines that some norms of the law may be against the Italian Constitution and some European legal sources. Then the article examines the new content of the law both as concerns the situations in which the worker can be reinstated, and the influence the reform may have on the notion of just cause and justified reason for dismissal. In particular, the author questions the interpretations maintaining that reinstatement can be applied only in exceptional cases while the severance indemnity is the normal sanction in case of unfair dismissal. In fact, the author sustains that, even though the reform introduced more flexibility in individual dismissal, reinstatement must in any case be applied when the firing is a disciplinary sanction which is not proportional to the seriousness of the fact carried out by the worker. In fact, in such cases the employee should be punished with a fine or a work suspension. In addition, when the dismissal is for economic reasons, the worker must be reinstated if the economic crisis is not so serious, the position has not been effectively suppressed or the employer fails to show that the worker could not be employed in another position with similar activities. On the contrary, the worker will be entitled to receive a severance indemnity if the disciplinary dismissal is linked to a fact which is not so serious as to justify the breach of the contract but is too grave to be punished with a work suspension. Furthermore, the economic dismissal can be sanctioned with a severance indemnity when the economic crisis exists but is not so serious, or is conjunctural and not structural, or is finalized to increasing profits or reducing costs in the absence of serious economic difficulties for the company.

author(s): Speziale, Valerio
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