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13/11/2012

I molti nodi irrisolti nel nuovo art. 18 dello Statuto dei lavoratori

WP C.S.D.L.E. “Massimo D’Antona”.IT – 159/2012



Il saggio è destinato ad un volume curato da M. Cinelli, G. Ferraro ed O. Mazzotta a commento della l. n. 92 del 2012, per i tipi di Giappichelli.



The A., after highlighting the relationship – not always consistent – between the  objectives of the legislator and the technical tools used, analyzes the main  issues raised by the recent reform. He therefore examines the consequences of the diversification of the protections on the activity of interpretation and evaluation of the judge, as well as the burden of proof. The A. takes a position in the debate about the legal notion of "disputed fact" relating to disciplinary dismissal, which is considered as referring to the breach and not only to the material fact. He then analyzes the role  of the rule of proportionality in relation to dismissal for subjective reasons, as well as the difficult distinction between manifest absence of the fact that justifies the dismissal for objective reasons  and the other cases of absence of the objective reason itself.
The A., having assessed  the case – ignored by the legislator of the reform – of the disciplinary dismissal unlawful for lack of timeliness of the sanction, is convinced that the employment relationship has lost the main features of stability and that consequently the prescription periods do not run during its execution.
Finally, the A. suggests a series of profiles of unconstitutionality regarding the case of dismissal unlawful for lack of motivation or for trivial failure. In particular, he analyses the case where the fact is not existing or not considered by collective agreements as justifying the dismissal. The compatibility with the Constitution of the optional system of reinstatement, “attenuated” in the case of manifest absence of the fact that justifies the objective reasons, is also assessed.

author(s): Mazzotta, Oronzo
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