A few days after the start of the Covid-19 pandemic, the decree law 18/2020 c.d. Cura Italia introduced to the art. 46 a general prohibition to carry out dismissals for g.m.o. individual and collective, in order to prevent the economic consequences of the health emergency from translating into the immediate suppression of jobs.
The period of the block, initially foreseen for a single period of 60 days, was gradually extended with extensions until 06/30/21, from which only companies that benefit from ordinary social safety nets will be able to decide whether to impose the dismissals or opt for conservative solutions by continuing to benefit from wage subsidies and tax exemption until 10/31/21.
Faced with such a scenario and with regulations that are not always too clear, the question arose as to whether or not the freeze on layoffs was also valid for the category of executives, whose position notoriously has a different economic impact on companies than that of employees.
After an initial timid favorable ruling by the Court of Rome (February 2021), which ordered the reinstatement of the manager fired during the blockade by virtue of a constitutionally oriented reading of the emergency legislation, the Judicial Office itself, with provision no. 3605 of 04/19/21, reached the opposite conclusion, this time providing a systematic interpretation of the text of the law.
With the first provision dated 02/26/21, the Capitoline judge had extended the discipline of the blocking of dismissals also to managers, by virtue of the principle of equality enshrined in the Constitutional Charter, concluding that, for the manager, the concept of “justification” of contractual origin is perfectly comparable to the motivation underlying the g.m.o. envisaged for employees only pursuant to art. 3l. 604/66.
This interpretation was immediately difficult to agree with, due to a precise (and repeatedly repeated) choice of the legislator who, not only by ordering the ban, but by extending the rule no less than four times, always and invariably confirmed the reference to art. 3 of law 604/66 – and not to economic dismissals tout court; law peacefully not applicable to executives for an equally express legislative decision (art. 2 and 10 – law 604/66).
With sentence no. 3605/21 of a few months later, the Roman judge in fact provided a different and much more acceptable interpretation of the law, this time systematic, reaching the conclusion that managers are in fact excluded from the block for two reasons.
In the first place, the literal data of the emergency rule does not provide for it: in fact, the rule exclusively refers to art. 3 of the law. 604/66; secondly, this literal datum is consistent with the spirit that supports the exceptional and emergency forecast of the blocking of layoffs during the pandemic, i.e. the possibility for companies to resort to social safety nets, to which in fact managers cannot expressly access legislative provision.
Nor could a different solution be reached, arguing on the contrary that the executive is instead protected in the hypothesis of collective redundancies. The difference between the two cases (individual dismissal and collective dismissal) is in itself sufficient to justify a different treatment of the two hypotheses (in compliance with Article 3 of the Constitution), nor can it constitute ex se valid reason for extending the benefit of the block, when the letter of the law and the rationale of the system do not allow it.
Therefore, in the presence of grounds for justification of the withdrawal, the extension of the block on dismissals also to executives would constitute the violation of two fundamental constitutional principles: that of equality – since two different situations would be treated equally – and the principle of economic freedom – since it would require the employer to bear the cost of the work of this category alone, since it itself cannot access the wage integration measures.
The only way to protect the manager from the ax of individual economic layoffs during the pandemic period would have been that of an express legislative provision of emergency wage measures of an extraordinary nature also for the category to which he belongs. It wasn’t like that.