L’impugnazione del licenziamento illegittimo tra il diritto sostanziale e la tutela giurisdizionale

The present essay focuses on the exam of the challenge to the dismissal, which is a phenomenon very common by its very nature and capable of attracting the attention of the lawmakers of the recent years, which have repeatedly innovated the relevant substantive and procedural laws, most recently in 2012 and in 2015, in view of its suitability, commonly recognized, to affect the dynamics of the labor market and consequently of the economy. This investigation moves from the analysis of the institution of dismissal, in its many forms, with particular reference to the evolution of the rules governing the employer’s right of withdrawal from the employment relationship and the applicable sanctions for violations. The first part of this study is in fact devoted to the examination of the many forms of dismissal envisaged by the law, the relevant pathological profiles and the consequences set forth by the law for the violation of the rules providing to the substantive, formal and procedural requirements for the purposes of a valid and effective termination of the employment relationship on the employer’s initiative. The exam of the institution of dismissal is aimed at allowing to address, in the second part of the essay, an investigation focused on the challenge to the dismissal before a court. It is in fact on the basis of a preliminary qualification of the employer’s right of withdrawal to the category of ‘potestative rights’, that the second chapter of this paper covers the analysis of the structural profiles of the legal action by means of which the employee challenges the dismissal in court. In this regard, this essays addresses, among other topics, the procedural rules for bringing a valid challenge to the dismissal and, with specific reference to the legal proceedings, the issues of the locus standi, the burden of proof, the nature of the legal action and the object of the proceedings, as well as the relevant implications concerning the limits of the court’s decision, also in relation to the possible subsequent exercise of the right of withdrawal. The last part of the paper is devoted to the study of the proceedings introduced in 2012 for disputes concerning dismissals falling within the scope of application of article 18 of law no. 300 of 1970. Although this special set of procedural rules is destined to be progressively replaced by the former proceedings for labor matters, which will be applicable to all cases of dismissal as it was in the past, it is currently still relevant to address the many procedural problems generated by the 2012 special proceedings, to which case law and scholars have not always presented consistent solutions.