Abstract

The paper deals with the doctrinal debate on the role assigned to the judge in the construction of legal rules, criticizing the hypothesis that the balance between law and judgment depends exclusively on a clash between legislative power and the judiciary. In the field of labor law, the author focuses attention on the events that have involved the disciplines of dismissals over the last ten years, noting the alternation between attempts by the legislator to make the consequences of unjustified dismissal certain and calculable, and attempts on the part of the judges to reclaim spaces of discretion. The recent sentence n. 194/2018 contributes to the return of discretion in the discipline of dismissals, on the assumption that only the judicial discretion can guarantee the observance of the constitutional principle of equality in the determination of the indemnity due in case of unjustified dismissal.