Maria Vittoria Ballestrero

Something Between Confusion and Distrust. General Clauses and Labour Court's Discretion

  • Abstract

Informations and abstract

Keywords: General Clauses; Judicial Discretion; Just Cause of Dismissal.

After the analysis of reasons behind the renewed interest for general clauses in employment law, the Author examines the definitions of the general clause in current legal scholarship, by investigating convergences and divergences about the essential elements of the concept, which is still confused. The Author then suggests a definition of the concept that might be useful to deepen the study of general clauses interpretation in labour law. The Author then examines article 30 of the Act n. 183/2010, whereby Italian legislator has limited judicial discretion in interpreting the general clauses. This is the consequence of an evident distrust toward judges. In order to check what might be the impact of article 30 on future judgments, the Author focuses on one general clause which is recalled by the legislator through a generic reference to dismissal law; mainly the just cause of dismissal. This has been recently amended by the Act n. 92/2012 with the aim to further restrict judicial discretion and bind judicial evaluation to contractual types of disciplinary sanctions. The Author argues that these restrictions are completely misleading.

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