N 10

May 2017

From the Jobs Act to today: if the remedy is worse than evil
By Salvatore Trifir

Two years after the enforcement of the Jobs Act decrees,

it is now time to weigh them up.

Let's start with layoffs. Controversies still concern mainly

those protected by old art. 18 St. Lav., as modified by
Fornero law. On the other hand, in view of the large
number of recruitments made in 2015, in the wake of
contributory relief, between the end of 2016 and the
beginning of this year, there has been an increase in cases
with applications of increased protection".

As imaginable, employees have tried to prove the existence of an unlawful reason to ask for rein-statement.
For this purpose, they rely on the now-established orientation of the case law before the Jobs Act, according
to which the reasons for reprisal can be overcome by any aspect of the con-crete case beyond the types of
discrimination inherent in the former. So they put forward a peculiarly unjustified reason when an applicant,
who had been afflicted with illness, complained about a de-qualification or demanded payment of salary
differences, had frus-tration with colleagues or with superiors and participated in union initiatives or
collective claims. Whatever reason is enough to argue that a disciplinary dismissal or a suppression of the
position would expire the will of the employer to get rid of an employee who presented themselves as un-
comfortable" in appeals.

For now, the court seems to uphold the principle that the unlawful reason, in addition to being deci-sive,
must be demonstrated by the worker who infers it, at least by serious, precise and consistent presumptions
(Rome, 4 October 2016). However, if companies were to go beyond layoffs, trusting that reinstatement is
excluded either in cases of a presumed lack of proportionality in disciplinary dismissals or in the absence of
objective reasons, there would be a boomerang effect.

In order to balance the weaknesses of the so-called "growing protections" to the detriment of em-ployees,
the Courts may begin to interpret, as in the past, the concept of unlawful reasoning, by settling for evidence
of probative content, and holding that the above-mentioned reason should not necessarily be exclusive, but
only be prevalent.

One sign of this risk can be derived from two recent Orders of the Rome Tribunal (16 January 2017) and
Vicenza (Ordinance of 24 May 2016) which - made in connection with lay-offs protected under art. 18 St. Lav.
- a claim that the dismissal, taken during the period following the request for marriage banns one year after
the celebration, presumed to be due to the marriage, were therefore null and void, even if reported to the
"groom".
 N 3
September 2016
These ordinances hold, in fact, extensively applicable, or by analogy, the protection afforded by the law also
to male workers.

Even more significant is the principle enshrined in a judgment of the Tribunale di Roma (judgment of 4 April
2016) - concerning a case where the new system of "increased protection" was applicable - according to
which the discriminatory reason could exist even where a case has been proven legit-imate ex art. 1 l. n.
604/1966, but the worker deduced the existence of a hypothetical "risk factor": an objective circumstance
from which it would be presumed that the dismissed worker, because of his subjective condition, was treated
differently from another employee in a similar situation, regard-less of the motivation and the intention of
the discriminatory measure. It is clear that if a worker is dismissed for disciplinary reasons they can begin to
seek reinstatement in the face of such a be-haviour, a colleague received a conservative sanction, which
would entail discrimination and con-sequent nullity of the dismissal. Obviously such a thesis cannot be shared
because it fails to as-sess dismissal from the point of view of injury to the trust in the relationship. However,
it is insidious because it starts from the assumption that any disparity of treatment entails discrimination on
its own.

In short, it is good for companies to be cautious in

applying the new redundancy regime, avoiding those too
"uninhibited", as in the sphere of the growing protection
discipline the possibility of a pro-worker's interpretation
is likely to frustrate its purpose. That being said, one
thing is to facilitate layoffs, the other is to create
employment.

The Jobs Act, on the other hand, is based on the

conviction - in my opinion, fallacious - that jobs can be created by recruiting as often as possible any kind of
relationship of subordination, while al-leviating the tutelage enjoyed by employees; of relationship, both
those predicted in the hypothesis of termination of the relationship. To see liberalization of redundancies is
likely to increase unem-ployment, rather than employment, especially in the future, when recruitment
incentives cease to exist.

Turning to the Welfare Act of the Jobs Act, I note that the attention of the legislator, as well as pub-lic opinion,
has focused mainly on support measures for those who have lost their jobs. Since 2017, Naspi has replaced
the mobility allowance, with the consequent application of a generalized regime in which small-scale workers
also benefit from a 24 month parachute, with a figurative con-tribution and community-based costs (While
the costs of the mobility allowance fell on the compa-nies benefiting from it). The current debate on this
issue of citizenship income and the extension of social cushions to co-workers and self-employed workers
confirms the centrality of the issue.

Well, there is no doubt that in a context of economic crisis, the legislator should rationalize and re-balance
the system of social security, while also protecting the previously excluded categories. However, this need
should not distract attention from the primary objective of encouraging econom-ic recovery and boosting
consumption. To do so, the only way is to reduce the tax burden on busi-nesses and labour costs by attracting
foreign investors and favouring local entrepreneurship. The prerequisite for implementing such tax policies
 N 3
September 2016
is the cut in unproductive public spending. And, next to this, it is necessary to keep in check the costs of the
social security system.

In other words, the over-emphasis on the issue of social security and its extension to all profes-sional
categories, including self-employed workers, seems to be similar to the attitude of a physi-cian who cares a
lot (perhaps too much) about symptoms, and little about curing the causes of the disease.

Self-employed work can and should be

incentivized not by promising free
professionals to benefit from modest social
security benefits, in return for a further
increase in their tax burden (already very
high). Rather, the principle should be
reconsidered - the basis of Art. 2 of
Legislative Decree 81/2015, according to
which any collaboration carried out within
the company would entail the es-
tablishment of a subordinate employment
relationship, irrespective of the
implementing arrange-ments and the
agreements reached between the parties.
The demonization of collaborations, un-
derlying the new workplace act, should instead give way to measures that can be identified in self-
employment and replaced by valid alternatives to foster the need, often common to businesses and workers,
for greater flexibility in managing relationships.

Additionally, fostering self-employment, especially for those who have lost their stable workplace, would be
a way to try to stifle exploitation such as black work or voucher abuse, which we have witnessed in recent
times.