Collegato lavoro: prime osservazioni sull'articolo 32, III° comma As mentioned in previous posting, double decanza period (60 days from written notice of dismissal or by the statement of the grounds and the next term of 270 days within which the application is filed must be in Court) shall apply to all cases of dismissal invalid.
In this regard it is already clear that layoffs are disabled, according to the letter of the rule, means:
1 - the canceled license for lack of just cause or justifiable reason;
2 - nil or those layoffs discriminatory because of that intimacy and that intimacy marriage to her during the period of gestation.
It is excluded, however, that the above double decadenziale term affects them, even the dismissal hearing. The above interpretation
option, which is considered consistent with the letter of the rule, and this must be kept firm for the proper exegesis of Article 32, paragraph III, a) and b) for the reasons that we will be here soon .
Article 32, third paragraph, states:
"The provisions of Article 6 of Law No. 604 July 15, 1966, as amended by this Article shall also apply:
a) redundancies which require the resolution of issues qualification of the employment relationship or the legitimacy of the term applied to the contract
b) the withdrawal of the principal in collaboration coordinated and continuous, even in draft mode, referred to in Article 409, number 3), CCP. "
Now, quickly read the Article 32 letter a), one could argue that the two-term decadenziale (+270 60 days) is also applicable to dismissals (of course oral) intervened in an employment black (or reports in which, Because of the lack of formalization, it always asks the issuance of a preliminary investigation on the verge of qualification of the report).
In fact, in the opinion of the writer, this can reading is incorrect.
Indeed, assuming that the letter a), Article 32 provides for the application of double limitation period also oral redundancies, which intervened in the termination of an employment black, would lead to the irrationality of the system regulatory as well as an irreconcilable conflict with the principles already expressed by the Constitutional Court.
Therefore, using the known techniques of interpretation must be considered: 1
- twice the limitation period that invests exclusively layoffs invalids and intimacy in writing,
2 - that Article 32, third paragraph, letter a), refers to cases of intimate recesses in writing in formal employment relationship, however, assume that the resolution of issues concerning the traceability of the project in the mode of subordination, with the result that the worker or the worker must (because of the term in accordance with the present "within Livenza that ...") at the end of each contract of project work and in which there is a withdrawal in writing, provide both, to appeals within 60 days, the filing of the appeal in the next 270;
3 - that Article 32, third paragraph, letter b) reports, unlike the case in point a), the only event of withdrawal in collaboration, even in draft mode, in which there is no question raised on the qualifications of rapprto.
these conditions, in the opinion of the writer, it seems appropriate to continue the appeal to Article 32, paragraph III.
So that provision continues by stating:
"The provisions of Article 6 of Law No. 604 July 15, 1966 as amended by paragraph 1 of this Article shall also apply:
c) the transfer under Article 2103 cc and ending after the date of receipt of notice of transfer;
d) the action for revocation of the term applied to the employment contract, in accordance with Articles 1, 2 and 4 of Legislative Decree 6 September 2001, No. 368, and amended, commencing with the expiry of that term. "
Moreover, continuing the call of the measure, following the fourth paragraph:
"The provisions of Article 6 of Law July 15, 1966, No. 604, as amended by paragraph 1 of this article applications simultaneously including:
a) contracts of employment term stipulated under Articles 1, 2 and 4 of Legislative Decree no. September 6, 2001, No. 368, in progress at the date of entry into force of this Act with effect from the expiry of the period;
b) contracts work completed, stipulated in the application of the law that existed prior to September 6, 2001 Decree No 368 and completed prior to the entry into force of this Act, with effect from that date of entry into force of this Act ;
c) alla cessione di contratto di lavoro avvenuta ai sensi dell'articolo 2112 c.c. con termine decorrente dalla data di trasferimento;
d) in ogni altro caso in cui, compresa l'ipotesi prevista dall'articolo 27 del D.lgs 10 settembre 2003 n. 276 si chieda la costituzione o l'accertamento di un rapporto di lavoro in capo a un soggetto diverso dal titolare del contratto".
Alla luce di tali disposizioni, chi scrive potrebbe anche ritenere costituzionalmente legittimo il termine di decadenza apposto ai licenziamenti invalidi, avendo la Corte Costituzionale già affermato la legittimità del termine di decadenza previsto per i soli casi di licenziamento, stante l'esistenza di un provvedimento espulsivo e il conseguente interesse della parte working to rapidly define the question concerning the asserted illegality of the act of dismissal.
But in other cases?
Article 32, third and fourth paragraphs (in so far provides twice decadenziale term in the event of reports to the project, individual trasferimernti, transfer company or its branch, the nullity of the term and irregular administration) to good to see you moving in two directions.
First, increase the difficulty of the action, to protect their rights, working for the party;
Second grant, the party giver, a possible amnesty, arising from any breach of the terms decadenziali, while in the presence of invalid measures.
Against this background, the constitutionality of the legislation appears, in the opinion of the writer, at least doubtful. Indeed
:
Doubtful, in point of contracts, is the keeping of that legislation in the light of that community and the principle laid down by the Constitutional Court ruling in footnote 314-2009.
Doubtful, in point of transfer of individual or company or a branch, it is the keeping of the law, where there provides for the same period in constant relationship is not supported by stability. Questionable
appears as a whole, the entire estate if there legislation provides only for employees, limitation periods are not provided, to the knowledge of the writer, for any other cases challenging the contracts invalid. Questionable
Finally, the estate appears to Article 32, fourth paragraph, letter d) because of its failure to identify from which the term shall commence on the decline.
Chambers. Vincenzo Caponera, Network legal Rome
