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N 8

March 2017

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.
N 3
September 2016
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.
N 3
September 2016

Plurijus Yearly Meeting 2017


The Plurijus yearly meeting 2017, the network of
European legal firm which Trifir and Partners is one
of the founders, was held in Luxembourg 18, 16 May
2017, managed by Luxembourg Firm Turk & Prum .

The Plurijus network, includes the most outstanding


firms from Belgium, Denmark, France, Germany,
Ireland, Luxembourg, Netherland, Portugal, Spain,
Sweden and Great Britain.

Our partners Stefano Trifir and Luca Peron attended the convention. The partnership between the legal
firms involved is strategic and can offer the clients who require assistance, a broad range of legal services
supported by a team of experts to prevent and solve any legal disputes.

Despite the busy agenda of the meeting, we couldnt miss the visit of the European Court of Justice in
Luxembourg, where a Judge of the Court gave a lecture, explaining how EU directives are interpreted and
applied in every EU country and the repercussions of rulings.

The next Plurijus meeting will be held in Dusserdolf in 2018, managed by the legal firm of Hoffmann Liebs
Fritsch & Partner .

Edited by Stefano Trifir, Damiana Lesce and Valeria De Lucia