From jobs act to today: if the treatment is worse than the disease
Two years have passed since the jobs act entered in force, and it is already time for evaluations. We shall start from layoffs. Controversies still concern the employees protected by the old art. 18 St. Lav. mainly, as modified by the Fornero law. On the other hand, considering the large number of hires made between the end of 2015 and 2016, there has been an increase of new workers demanding the application of the so called growing protection.
As was predictable, workers in this position try to prove the existence of an illicit motivation of the dismissal to obtain the reintegration to the job. In this sense, it is more and more mentioned the orientation of the Supreme Court preceding the jobs act, according to which, the symptoms of an illicit motivation of the dismissal can be deduced from any aspect of the concrete case. In this way, every reason seems sufficient to argue that a termination of the employment relationship hides the employer’s will to – for some reasons – eliminate an uncomfortable employee.
For now, the principle remains in force that the unlawful reason of dismissal has to be demonstrated by the worker at least through serious, precise and concordant conjectures (Court of Rome, 4 October 2016). However, if companies start to fully use the potential of the new growing protection regime (with exclusion of the reintegration either in case of lack of proportionality or in the absence of the reason of dismissal) there will be the risk of a boomerang effect. In fact, in order to balance the lack of the protection present in the new discipline, decisions may begin to interpret the concept of unlawful reasoning more and more extensively. In particular, it can be decided that the unlawful reason of dismissal should not necessarily be exclusive but simply prevalent too.
One sign of this risk can be derived from two recent decisions of Tribunal of Rome (16 January 2017) and of Vicenza (Ordinance of 24 May 2016) which claim that the dismissal – taken during the period of marriage – is presumed to be due to the marriage, and is therefore null and void, even if it is inflicted on the groom.
In fact, these decisions consider the protection afforded to female workers to be extensively applicable also to male workers.
Even more worrying is the principle established in a judgment of the Tribunal of Rome (4 April 2016) where in the new regime of “growing protection” the discriminatory reason may exist even where is present a legitimate cause ex art. 1 l. n. 604/1966, but the worker deduced the existence of a hypothetical “risk factor” – such as circumstances from which could be presumed that the dismissed worker, because of his subjective condition has been treated differently from another worker in a similar situation, regardless of the motivation and intent of the person who adopted the discriminatory measure. It is clear that if this interpretation were generally shared, a dismissed worker for disciplinary reasons would request reintegration even only for the fact that a colleague has received a conservative sanction the same behavior. Such thesis cannot be agreed because it ignores an evaluation of the dismissal on the side of the essential fiduciary relationship. However, the assumption that any disparity of treatment conceals a discrimination can be insidious.
Furthermore, it must be said that one thing is to facilitate layoffs, another is to create employment. Unemployment is fought by reshaping the economy. The Jobs Act, on the contrary, is based on the conviction – wrong, in my opinion – that jobs can be created by bringing any kind of work relationship to employment, while at the same time attenuating the protections for employees. Nevertheless, liberalization of layoffs could increase unemployment, rather than employment, especially in the future, when hiring incentives will end. Here, I relate to the second aspect of the jobs act that deserves an evaluation. The attention of the legislator and of the public opinion is mainly focused on support measures for those who lose their job. However, this need should not distract us from the most important goal which is encouraging economic recovery and consumption. The only way to achieve it is by reducing the fiscal pressure on companies and labor costs, in order to attract foreign investors and help local entrepreneurship. The premise to realize such tax policies should be found in the cut of unproductive sectors of the public spending. And, in addition to this, it is necessary to keep in check the costs of the welfare, including the support measures for unemployed workers, too.
In other words, the excessive attention payed to the welfare and its extension to all professional categories – including self-employed workers – could be compared to the attitude of a physician who cares (perhaps too much) about symptoms, and does not cure the causes of the disease. Self-employed work should not be subsidized promising to professionals to benefit from a modest social security cushion, in return for a further tax increase for them (already very high). In reality, it should be reconsidered the principle – at the basis of art. 2 Lgs. 81/2015 – according to which any work relationship established in a company should be considered as a subordinate employment relationship, regardless the agreements of the parties. The demonization of collaborations, underlying the new Jobs Act, should instead cave in measures identifying in self-employment a valid alternative to face the need of flexibility in managing work relationships, common to companies and workers. Additionally, subsidizing self-employment, especially for those who have lost their employment, would be a protection against exploitation such as black work or voucher abuse, something which has been recently experienced.
Edited by Stefano Trifirò, Damiana Lesce and Valeria De Lucia