1. With two rulings published on the same day (17 July 2024), the Constitutional Court has enriched the already substantial jurisprudence on sanctions against unlawful dismissals. The precedents are numerous and so varied as to make an overall survey of them of little use. It is sufficient to highlight that the succession of jurisprudential orientations has completely changed the face of the rules of art. 18 St. lav. (applicable to workers hired up to 7 March 2015) and of Legislative Decree no. 23 of 2015 (applicable to workers hired after). The existence of two disciplines that are not very different from each other (see Constitutional Court no. 44 of 2024 ) now more than ever takes on the characteristics of a useless duplication. This also explains the doctrinal debate on the unification of the discipline of sanctions against unlawful dismissals ( L. Zoppoli 2022 ; Ballestrero 2023 ); as well as the referendum proposal recently presented by the CGIL, with the aim of completely repealing Legislative Decree no. 23 of 2015 and returning to the application, for all workers, of art. 18 St. lav., as amended by Law 92 of 2012 (the so-called Fornero reform).
2. Sentence no. 128 of 2024 decided some questions of constitutional amazon database legitimacy on art. 3 of Legislative Decree no. 23 of 2015.
The rule regulates the distribution of sanctions against unlawful dismissals, providing, in paragraph 1, that the judicial ascertainment of the lack of a justified objective or subjective reason results in the payment of compensation by the employer. Paragraph 2 instead applies the sanction of reinstatement in the event that the fact forming the basis of a dismissal for subjective reasons is non-existent, but not also if the fact forming the basis of a dismissal for objective reasons is. A dismissal for objective reasons based on a non-existent fact is therefore sanctioned only with compensation protection.
The exclusion of reinstatement protection in this last case led the referring judge to doubt the constitutional legitimacy of the provision, insofar as such protection is not provided for. In particular, the referring judge criticized the application of two different sanctions in cases of ascertainment of the lack of objective reason and subjective reason or just cause. The different treatment of the two hypotheses would have been "unfairly discriminatory" in the face of two identical phenomena, and therefore incompatible with the principles of reasonableness and equality under art. 3 of the Constitution.
Furthermore, the exclusion of reinstatement protection would also have been in conflict with arts. 4 and 35 of the Constitution, which form the basis of the principle of necessary justification of the employer's termination, since the provision would leave the choice of applicable protection to the qualification of the dismissal by the employer. It was in fact believed that the employer could have opportunistically opted to qualify the dismissal as dismissal for objective reasons, so as to exclude ab imis the possibility of incurring the sanction of reinstatement.