The main aspect of the ongoing debate on Article 18 of Law No. 20 of 1970 May 300, better known as the Workers' Statute, as far as companies are concerned, is the application of that part of the law which concerns the reintegration into the company of worker following the sentence of the Magistrate who deemed his dismissal illegitimate.
Over time, copious jurisprudence has developed on the method of reinstatement and even today, in particular on striking cases, there is still further debate.
In fact, the now consolidated practice that the reinstatement can be correctly exercised by the company with the payment of the salary and with the refusal of the performance by the employer is however contested by the most extremist wing of the Union, since the so-called reinstatement "by equivalent" does not respect the dignity of the right to work and does not erase the injustice of discriminatory dismissals, which cannot be bartered with financial compensation.
It's clear that it is difficult for a company to accept the reinstatement of the worker who was fired for behavior in violation of a law and which in any case caused the loss of trust. Jurisprudence has played a very important role in Italy development of the reintegration deriving from art. 18. By way of example, we cite some cases of which, out of respect for privacy, the names are not reported (they are replaced by "X" and "Y"):
– worker X, who had distributed, with company tools dedicated exclusively to the service, a flyer containing disparaging expressions and exhortations to commit violent acts, is reinstated as "inciting sabotage is not an offence, but an expression of trade union criticism" and " the expressions and words used by the worker must be read in their context of corporate conflict";
– worker X who is absent from work to assist his two-year-old daughter suffering from chicken pox on the basis of the law on parental leave and, contradicting what is represented in the medical certificate, goes to the FGA plant in Pomigliano d'Arco on the same day ( over 200 km away!) to participate in the demonstration held in front of the gates of that factory, is reinstated following the declaration of illegitimacy of the dismissal;
– workers X and Y who, having not found consent to the strike organized by them, block normal production activity, are reinstated despite the fact that the magistrate on the merits has fully argued, at the end of a long investigation, that the fact had occurred and that the three fired, well understanding the effects of their conduct. had persevered in their action to the detriment of the company (ed. the magistrate in question was assigned to another position);
– worker X who, posing as a non-commissioned officer of the Guardia di Finanza and exhibiting a counterfeit badge, had demanded the delivery of goods from the owners of some commercial establishments without paying the price, is reinstated because the behavior is not serious enough to be fired, awaiting the modest amount of goods delivered and the simplicity of the tasks to which the employee was assigned; moreover, the resonance of the behavior is not such as to cause serious damage to the Company's image, since the news was made public (only) by a local newspaper;
– worker X, who had stolen some objects, including a satellite navigator, keeping them in his personal locker, is reinstated as the magistrate considers the "subjective element proof" to be missing at the time the asset was stolen; in essence, the worker would have acted in good faith, keeping the material in his locker precisely in order to prevent it from being stolen!
The combined provision of article 18 and the behavior of the Judiciary therefore determines a situation in which the Company is not only not free to operate with workers with whom the minimum condition of the relationship of trust no longer exists, but is forced to recognize their full practicability, with consequent economic burden, to avoid further risks of discrimination.
The reported cases mainly concern people involved politically or in trade union activities or in some way connected to it, and therefore an even more worrying aspect emerges, i.e. that the violation of the normal rules of fairness attracts greater attention towards workers who cover a political/trade union role, such as to be able to define this as "reverse discrimination".
With the consequence, for the Company, of having to "suffer" decisions that are surprising to say the least, when not paradoxical, and in any case incompatible with correct company management. It is no coincidence that, very often, behaviors deemed unacceptable by the company have been endorsed by the judiciary as legitimate or worthy of "particular" protection, only because they are acted by workers with a trade union role, with the effect of creating the generalized belief that everything is allowed in the company in order to stem, as claimed by a certain trade union or part of public opinion, the "overwhelming power of the company" .
For reinstatement for just cause in the event of dismissals for proven discriminatory reasons, it is not necessary to bother with the "totem" of Article 18 of the Workers' Statute, it is sufficient to refer to the provisions of the Constitution and protected by the Civil Code. The truth is that article 18, far from canceling the injustice of discriminatory dismissals, has instead often given "political" coverage to legitimate dismissals, with the risk of irreparably undermining legal certainty.
Representation in the company
An issue that should find absolute priority if you want to change the industrial relations system is that of trade union representation in the company, but today there is only a "deafening silence" on this matter, also due to the total absence of Confindustria.
Confindustria and trade union organizations believe that they have fully regulated the subject with the Interconfederal Agreement of 31 May 2013, but apart from the need for a long life expectancy in order to be able to appreciate any results, the subject does not deal with the real problems of relationships in Company with employee representatives.
The sentence of the Constitutional Court of July last year has opened a prairie for any trade union organization that deems it legitimizes itself to represent workers and therefore, particularly in medium and large companies, there may be a proliferation of trade union acronyms on whose representativeness one could express great perplexities; the main consequence will inevitably be that of having to manage the competitiveness between the various organizations rather than finding a solution to the workers' problems.
There is no need to mention the Fiat case, where the number of trade unions claiming trade union representation had reached 7. A recent decision by the Court of Busto Arsizio has recognized full representativeness of a CUB Trasporti of Varese, with the faculty for the same to negotiate its own claim platform, appoint its own RSA with the recognition of all trade union rights, call assemblies.
Also on this subject, the total silence of Confindustria and the different opinions in the political sphere will not help the Companies to have, internally, correct trade union relations and above all that clarity of relations which is necessary for the effective functioning of the company.
