Il presente saggio costituisce rielaborazione della Relazione tenuta al Convegno "La riforma dell’art. 18 dello Statuto dei lavoratori dieci anni dopo" svoltosi a Firenze il 13 giugno 2022.

Pubblicato su RIDL n. 3/2022

The essay traces the reasoning followed by the Court of Cassation in widening the scope of application of the reinstatement remedy in the hypothesis of dismissal imposed for an infringement for which the collective agreement provides for a conservative sanction. The author considers that this trend in the case-law of the Court of Cassation — a drastic change from the previous one and not a simple clarification — is in the wake of the orthopaedic adjustment operated by the Constitutional Court about the Fornero reform and the Jobs Act, starting from sentence no. 194 of 2018. The author assumes that between the two trends of the Supreme Court, both legitimate in themselves as respectful of the hermeneutic method, a third median position can be taken. Specifically, the new trend aimed at enhancing the judicial interpretation of collective agreement rules should be to be embraced, but not to the point of justifying, in respect of the rule of law, judicial creationism operations. This median position would certainly be facilitated by a better technical drafting of collective agreements, in the sense of greater analyticality of disciplinary codes, which is consequently recommended.