Italy: Void Dismissals and Reinstatement: Article 2, paragraph 1, of Legislative Decree No. 23/2015 is Unconstitutional

The case under examination concerned the compliance with Italian Constitution of Article 2, paragraph 1, of Legislative Decree No. 23/2015, initiated by the Supreme Court with referral order of 7 April 2023.

In particular, the Supreme judges took as a basis the decision of the Florence Court of Appeal, which having found that the dismissal of an employee was null and void due to the breach of the special regulations applied to him, had not granted him the reinstatement but only the indemnity protection. The Court of Appeal justified its decision on the grounds that (i) Article 2, paragraph 1, of Legislative Decree No. 23/2015 “provides for the reinstatement of the employee only in cases of discriminatory dismissal” or “in the other cases of voidance expressly provided for by law” and (ii) in that case “discriminatory nature had to be excluded and the voidness was not expressed.”

The employee challenged the decision before the Supreme Court, complaining that the Court of Appeal, in stating that the reinstatement protection only applies to cases of express voidness and not to all cases of voidness, wrongly interpreted Article 2, paragraph 1, of Legislative Decree no. 23/2015 both from the standpoint of breach of the enabling Law no. 183/2014 and because the emphasis of the adverb “expressly” would be unconstitutional and in any case illogical and inconsistent.

The Supreme Court, with referral order no. 9530 of 7 April 2023, ruled that the exclusion of voidness other than those expressed—consequent to the use in Article 2, paragraph 1, of Legislative Decree No. 23/2015 of the adverb “expressly”—was not reflected in Law No. 183/2014, which on the contrary recognized reinstatement in cases of null dismissals generically understood without any distinction. In light of the above, the Supreme judges raised questions concerning the compliance with the Italian Constitution of the said Article regarding the part where it provides for reinstatement in the event of discriminatory dismissal or “in the other cases of voidance expressly provided for by law.”

The Constitutional Court, with judgement no. 22 of 22 February 2024, after an accurate assessment of the limits and criteria of enabling legislation, stated that the distinction between “express nullities and nullities that are not expressed” is not based on the enabling Law no. 183/2014.

By expressing the above conclusions, the Constitutional Court provided that, in the future, the regime of void dismissals will be the same both in the case where the mandatory provision breached also contains the express and textual sanction of voidness, and in the case where voidness is not expressly envisaged as a sanction.

Key Action Points for Human Resources and In-House Counsel

Practical Points

• The distinction between dismissals affected by “expressly” provided or non-expressed voidness is to be considered definitively unconstitutional.
• With the abolition of the adverb “expressly,” the void dismissal generically understood will always have to be followed by the same sanction, which is reinstatement.