of, which according to the new law D
Contract protections growing, and compensation after the Jobs Act, the allowance in lieu of reinstate, The compensation is payable to the worker for unfair dismissal, according to the old regime, of the sanctions referred to in art. three hundred and eight Ltwenty-three in. For purposes of determining the compensation, the criterion of length of service is not only concerned with the dismissals coming within the scope of application of D. twenty-three in. In fact, already for the protection of the mandatory under art. eight L, this criterion (in the presence of specific limits in the employment of the employer) is used to recognize the worker an increase in the allowance of compensation up to: substance, in the above-mentioned hypothesis is allowed to increase the amount of the bonus in addition to the general maximum of six months.
Is only taken into account the length of service matured by the employee at the same employer.
The parameter reference is made in both systems, sanctions from the most recent comprehensive salary. In this regard, it should be noted that before the law Fornero Law of), art. eighteen L three hundred made reference to the"comprehensive salary", and not the"last". The current text, the result of the above-mentioned reform, is now a reference to the last pay overall, having borrowed in this context, as already provided by art.
This is a change that raised a few eyebrows, where the compensation is accompanied by the real protection and that is when the employment relationship must be considered, following the declared unlawfulness of the dismissal, as the dismissal has not terminated the employment relationship), differently from what happens in the scope of protection compulsory where the dismissal, however, terminate the employment relationship.
Do, in fact, a reference to the last salary is equivalent to the exclusion of every possible update of the salary to which the employee would have (and had) the right, if the reference had been, simply, to pay overall. in this case, in fact, the worker would be entitled to the salary which would have accrued if he had worked normally, including, therefore, also of the evolutions of the remuneration that would be received after the dismissal", while"in the new regulatory framework the remuneration to be taken as a reference must be that of the last paycheck prior to the termination of the employment relationship, to the exclusion of any update (residential community). On the basis of the new sanctions regime, ex D. twenty-three by, however, for all redundancies (in this case, without that there are distinctions between small companies and medium to large), the parameter calculation for the compensation is provided by the last reference salary for the calculation of the severance indemnity provision (TFR). It is to be noted that the initial scheme of the D. twenty-three provided that the same parameter of the last comprehensive salary of fact, that still exists for the old sanctions regime. The reason for the change that has occurred in the final text must be sought in the desire to accept the opinions of the parliamentary Committees that have pointed out how the notion of pay overall has been in the time susceptible of different interpretations and applications, with the consequent need to use a parameter, the more certain and clear.
In consideration of this, in the definition of the D.
for the employees with the right to the protection required
twenty-three, it was decided to replace the the concept of"final salary overall"with a more certain"last reference salary for the calculation of the severance indemnity". On the basis of art. c, for the purposes of the calculation of severance pay, using the pay consists of all sums, including the equivalent of benefits in kind, paid in dependence of the working relationship, the title is not occasional, and with the exception of what is paid as reimbursement of expenses. The standard does, however, prejudice to the different provisions contained in the collective agreements, which, in fact, in general, indicate the fringe benefits to be included in the remuneration useful for the calculation of severance pay. In all cases in which the judge, having established the illegality of the dismissal, recognizes the right to reinstatement in the work place, allowed the worker to opt out by opting in replacement, to compensation equal to fifteen months (cd. opting out), not subject to social-security contributions. The terms and conditions for the exercise of the option are the same, whether the worker applies the old regime of sanctions (art. eighteen L three hundred) and the new (art. the two D Lgs. twenty-three by), as well as, in either case, the request of the compensation in lieu determines the resolution of the employment relationship. Received from the court order to reinstate the worker in the workplace, the employer is obliged to invite him to resume the service. However, if the worker does not do so within thirty days, the employment relationship shall terminate, unless within the said term, do not ask the employer for the payment of the allowance in lieu. Even in the absence of an invitation, the employee may request payment of this allowance, but in this case the term of thirty days for the exercise of the option shall run from the communication of the filing of the judgment. It should be noted that in the D.
twenty-three refers to the"pronunciation"instead of the judgment (as indicated in art.).
In practice, the term of thirty days for the exercise of the option, to the allowance in lieu, shall run from the communication of the filing of the judicial decision, or by the invitation of the employer to resume service, if earlier than the above-mentioned communication. This term is considered to be peremptory and therefore is placed to the penalty of forfeiture of the exercise of the option. According to the art. eighteen L three hundred, the allowance is equal to fifteen months of the last comprehensive salary, in fact, while the art. the two D Lgs. twenty-three takes account of the last reference salary for the calculation of severance pay.
The exercise of the option for compensation in lieu of fifteen months is foreseen in all cases - the old and the new regime - in which, having established the illegality of the dismissal, the court orders the employer to the reinstatement in the place of work.
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