Report at the University of Vienna, 31st January 2004
Vienna, Relazione, 31 gennaio 2004

Abstract: The Author moves from the remarkable variety of the European courts’ decisions about the justification of dismissal for economic reasons; he then examines their legislative basis and points out that it is just the maxim that prevails in the case-law books that is the least coherent with the literal content of the rule regulating this matter in the Italian law (as well as in most European national laws). On the other hand, the same maxim appears coherent with the most relevant function effectively exerted by labour law in the last half century: the guarantee of parity of treatment among workers, independently of the differences among their performances. This function, which in the Italian law corresponds to the principle of equalization set by Sect. 3 of the Constitution, must be balanced with the principle of equal treatment for work of comparable worth and with the principle of liberty of enterprise: from this balance, according to the A., the notion of objective justification of dismissal, the keystone of the whole labour law system, arises. On the level of the reform of the matter, the A. observes that the labour market characteristics also cause the old protection mechanism to produce some effects that clash with the workers’ equalization principle; and from this observation he draws an argument in favour of a reform of this mechanism, of which the  essential contents are outlined in the last part of the essay. Summary:1. A crucial question about equality: is it fair to dismiss an inefficient worker? 2. Protection against dismissal as a guarantee of equality. The employment contract as an insurance policy. 3. Equality vs. parity of treatment. The question of the incentive for individual effort. 4. Equality and parity of treatment vs. freedom of enterprise. 5. The dismissal of the inefficient worker in the light of the constitutional principles of equality, parity of treatment and freedom of enterprise. 6. Protection against dismissal as a factor of inequality. 7. The crisis of the old egalitarian mechanism. 8. A mechanism hostile to the less fortunate workers. 9. How a “Rawlsian” option can be pursued in the western market system of the XXI century.