Il c.d Decreto Agosto (D.L. n. 104 del 14 agosto 2020) è finalmente intervenuto a modificare la disciplina sui licenziamenti prevista dal Decreto Cura Italia (D.L. n. 18/2020) e dal Decreto Rilancio (D.L. 34/2020), superando il rigido sistema previgente che prevedeva il divieto assoluto, per tutti i datori di lavoro, di effettuare licenziamenti per giustificato motivo oggettivo (cioè per motivi riorganizzativi ed economici) e licenziamenti collettivi sino alla data del 17 agosto.
L’art. 14 del Decreto Agosto, infatti, pur disponendo la proroga di tale divieto (ad eccezione di tre casistiche specifiche, cioè la cessazione definiva dell’attività di impresa, il fallimento, ovvero l’accordo collettivo aziendale che preveda un incentivo alla risoluzione del rapporto di lavoro per i singoli lavoratori che vi aderiscano), non indica più un termine fisso e uguale per tutti i datori di lavoro (a parte il termine ultimo del 31 dicembre 2020), ma introduce una sorta di termine mobile, per individuare il quale è necessario fare riferimento a due criteri alternativi:
a) l’integrale utilizzo delle 18 settimane di cassa integrazione previste dall’art. 1 dello stesso D.L. 104/2020 a partire dal 13 luglio (18 settimane di cui 9 gratuite e 9 soggette al pagamento di un contributo addizionale proporzionato alla perdita di fatturato del primo semestre 2020);
oppure
b) la fruizione di tutto l’esonero contributivo di massimo 4 mesi introdotto dall’art. 3 in favore di quelle aziende che rinunciano agli ammortizzatori sociali nel periodo dal 13 luglio al 31 dicembre 2020.
Andiamo qui di seguito ad illustrare le 7 casistiche che, a nostro avviso, si possono in concreto verificare:
1) azienda che abbia iniziato a fruire delle 18 settimane di cassa integrazione in maniera continuativa a partire dal 13 luglio 2020. In tal caso, la scadenza del blocco dei licenziamenti sarà fissata al 16 novembre 2020;
2) azienda che, a partire dal 13 luglio 2020, alterni periodi di cassa a periodi di lavoro. In tal caso, il blocco dei licenziamenti cesserà alla scadenza della diciottesima settimana di cassa integrazione usufruita ai sensi del Decreto Agosto;
3) azienda che, a partire dal 13 luglio 2020, intenda utilizzare solo le prime 9 settimane di cassa gratuite, o parte di esse, e non le altre 9, che hanno invece un costo. In tal caso il blocco dei licenziamenti durerà sino al 31 dicembre 2020, non essendo state usufruite integralmente le 18 settimane;
4) secondo l’art. 1 co. 1, i periodi di cassa integrazione richiesti ai sensi del precedente Decreto Cura Italia e collocati in periodi successivi al 12 luglio 2020 sono computabili nelle prime 9 settimane concesse dal Decreto Agosto. Tuttavia nel caso in cui l’azienda, avendo terminato dopo il 12 luglio di usufruire della cassa richiesta ai sensi del Decreto Cura Italia, non chieda altri periodi ai sensi del Decreto Agosto, essa rientrerà nella casistica di cui al successivo n. 5;
5) se l’azienda non intende utilizzare nessuna delle settimane di cassa concesse dal Decreto Agosto ma ha fatto cassa nei mesi di maggio e giugno scorsi, essa potrà licenziare solo dopo aver integralmente usufruito dell’esonero contributivo introdotto dall’art. 3 del Decreto Agosto che, peraltro, potrà essere richiesto solo a seguito dell’apposita autorizzazione da parte della Commissione Europea, ad oggi non ancora arrivata. L’esonero è comunque previsto per un massimo di 4 mesi, ma la sua misura concreta è pari al doppio delle ore totali di integrazione salariale già fruite dall’azienda nei mesi di maggio e giugno 2020 (esempio: se in quel periodo sono state fruite due settimane di cassa, la scadenza del blocco è fissata dopo un mese di esonero contributivo, fruibile dal momento in cui sarà arrivata l’autorizzazione della Commissione Europea);
6) azienda che non intende utilizzare nessuna delle settimane di cassa concesse dal Decreto Agosto, ha fatto cassa nei mesi di maggio e giugno scorsi, ma non intende usufruire dell’esonero contributivo di cui all’art. 3 per procedere da subito con dei licenziamenti. Considerato che la norma non specifica se l’utilizzo dell’esonero sia obbligatorio o no, restiamo in attesa di avere dei chiarimenti sul punto dal Ministero, oppure in sede di conversione del Decreto Agosto;
7) azienda che non intende usufruire della cassa integrazione nel periodo successivo al 12 luglio 2020, non ne ha nemmeno usufruito nei mesi di maggio giugno 2020 e di conseguenza non ha titolo di usufruire dell’esonero contributivo di cui all’art. 3 del Decreto Agosto. Per questo caso si scontrano due interpretazioni diametralmente opposte: una che individua la scadenza del blocco al 31.12.2020 e l’altra che invece ritiene che queste aziende possano procedere da subito con i licenziamenti, purché siano in grado di dimostrare la sussistenza di un giustificato motivo oggettivo legittimo. Su quest’ultimo punto rimandiamo ad un nostro approfondimento che pubblicheremo nei prossimi giorni.
Insomma, la situazione attuale è senza dubbio complessa e presenta diverse peculiarità che rendono necessaria una valutazione specifica e mirata delle condizioni in cui si trova ciascuna azienda. Per questi motivi, lo Studio Galbusera and Partners, oltre a monitorare costantemente l’evoluzione normativa, è a disposizione dei propri clienti per una valutazione approfondita di ciascun caso concreto e per tutti i chiarimenti necessari.
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