In the context of the (well known) art. 18 of the Workers’ Statute (L. 300/1970), the peremptory “apply” of the first sentence of the seventh paragraph was in contrast with the “can apply” of the second sentence.
This implies, according to the proper meaning of the words, a discretionary faculty of the judge.
The ‘attenuated’ reinstatement protection, therefore, was subject to the discretionary assessment of the Judge with respect to the “not excessive onerousness of the remedy” (Court of Cassation, Labor Section, judgment January 31st 2019, n. 2930).
The Italian Constitutional Court sentence
With Sentence no. 59/2021, the Italian Constitutional Court declares the constitutional illegitimacy of art. 18, seventh paragraph, second sentence, of the Workers’ Statute in the part in which it provides that, when the judge ascertains the manifest non-existence of the fact based on the dismissal for justified objective reason, he “can apply” instead of “apply” the reinstatement protection attenuated (fourth paragraph of the same art. 18).
The contested provision, in establishing a discretionary right to grant or deny reinstatement, was in contrast with art. 3 of the Italian Constitution.
The purely optional character of reintegration revealed a disharmony within the peculiar system outlined by the law violated the principle of equality.
In particular, the principle of equality is violated if, in the event of economic dismissals, reinstatement is provided as optional – while it is mandatory in dismissals for just cause and justified subjective reason – when the fact that caused them is manifestly non-existent.
A different treatment reserved for economic dismissals is not justified (and nevertheless the more incisive connotation of the non-existence of the fact, indicated by the legislator as ” manifest ”).
The ‘attenuated’ reinstatement protection
The attenuated reinstatement protection provides for reintegration into the workplace, like the ‘full’ reintegration protection, but limits to twelve months the amount of compensation that the employer is obliged to pay.
From this amount, however, must be deducted not only what the worker has earned by virtue of other occupations (aliunde perceptum), but also what he could have earned by working with ordinary diligence searching for another job (aliunde percipiendum).
Also in this case, the worker has the right – specifically exercised in the main proceedings – to opt for the indemnity in lieu of reinstatement.
This protection applies to disciplinary dismissals, for just cause or justified subjective reason. It appeals when the judge finds the non-existence of the disputed fact or the traceability of the fact to conduct punishable with a conservative sanction based on the provisions of collective agreements or disciplinary codes.