"Openings" of "limited" compensation for labor non-compliance and emergence of their "dissuasive effect": between dogmatics (theorization) and pragmatics (study of typical legal cases)

Abstract

Unlike Civil Law, Labor Law is characterized by the regulation of legally limited compensation to repair damages due to non-compliance. Compensation for dismissal, even if justified cause (arts. 56 Workers' Statute and 110 Law regulating the Social Jurisdiction) are the most typical example, today in crisis. This technique is also supported by Law 20/2021, of December 28, for the dismissal of public employment personnel in situations of abuse of temporality rules. In other compensation areas, such as those related to damages derived from non-compliance with occupational risk prevention, there is no such limitation or legal assessment, but jurisprudence has consolidated the practice of resorting to the standardization of amounts through the application of the "social sanctioning scale". In all cases, compensation satisfies only a limited reparative purpose and leaves out the deterrent purpose. Union Law and the European Social Charter openly question this internal legal situation, according to recent decisions of courts and guarantee bodies, such as the Court of Justice of the European Union and the European Committee of Social Rights, in turn, subject to various interpretations by the courts of our country. This study analyzes this novel state of affairs, on a theoretical (dogmatic) and above all practical (pragmatic) level, in order to contribute to the reconstruction that will occur, sooner rather than later, of the compensation system for labor breaches, in a line more open to full reparation and a deterrent effect, without in any way confusing compensation with the non-existent institution of punitive damages, typical of Anglo-Saxon law, but outside the walls of European continental law.