Constitutional Court 125/2022 Costituzionale, sentenza n. 125 del 19 maggio 2022.
The Constitutional Court in its judgment No. 125 of 19 May 2022 declares the constitutional illegitimacy of Article 18, seventh paragraph, second sentence, of Law No. 300/1970, in so far as it requires, for the purposes of reinstatement of an employee dismissed for objective reason, that the fact at the basis of the dismissal be manifestly unfounded.
For the purposes of the protection of Article 18, in the text amended by the Fornero reform, the judge is therefore not required to establish that the non-existence of the fact justifying the economic dismissal is 'manifest' (seventh paragraph, second sentence).
To the fact - explains the judgment - must be "traced what pertains to the effectiveness and authenticity of the company's choice". On these aspects, the judge is called upon to carry out an assessment of mere legitimacy that cannot "trespass into a review of opportunity and convenience" (Constitutional Court ruling no. 59 of 2021).
For the Constitutional Court, the requirement of manifest non-existence is above all undefined and lends itself, precisely for this reason, to uncertainties in its application, with consequent disparities in treatment. This is because, in practice, the distinction between the manifest manifestation of the defect and the mere groundlessness of the fact is undoubtedly problematic.
In addition, continues the judgment, the existence of a fact is a difficult notion to graduate.
In disputes concerning dismissals for objective reasons there is an articulated probatory scenario, continues the Constitutional Court: in addition to ascertaining the existence or non-existence of a fact - which is already a complex operation in itself - the parties, and with them the judge, must engage “in the further verification of the more or less marked graduation of the possible non-existence”. There is, therefore, the Constitutional Court concludes, an “unreasonable and disproportionate burden” on the course of the trial: the vagueness of the requirement is accompanied by an unreasonable complication on the procedural front.
The Court therefore identified an unbalance between the aims the legislator had set itself - consisting in a fairer distribution of protections, through quicker and more easily foreseeable decisions - and the means adopted to achieve them.
On these grounds, the Constitutional Court: “declares the constitutional illegitimacy of Article 18, paragraph 7, second sentence, of Law No. 300 of 20 May 1970 (Rules on the protection of the freedom and dignity of workers, trade union freedom and trade union activity in the workplace and rules on employment), as amended by Article 1, paragraph 42, letter b), of Law No. 92 of 28 June 2012 (Provisions on the reform of the labor market in a perspective of growth), limited to the word 'manifest”.