Disciplinary dismissal and constitutive nature of relapse

In Judgment no. 1909 lodged on 25 January 2018, the Court of Cassation has ruled on the subject of disciplinary dismissal, stressing the need for the preliminary notification of the relapse having a constitutive nature. In the case at hand, a female worker had been dismissed for just cause because she had missed work one day without providing adequate justification. In the previous month, the employee had received a disciplinary letter in which she was reprimanded for having been unjustifiably absent from work for thirteen days. However, such occurrence had not been mentioned in the last letter of reprimand at the basis of the withdrawal. The Court of Cassation, in the light of its own customary rulings, maintained that “the preliminary notification of a worker’s violation must necessarily also concern – under penalty of invalidity of the punishment or disciplinary dismissal – the relapse and the previous disciplinary measures that constitute it, only where the relapse is a constitutive element of the violation in question and not just a mere criterion, as a negative precedent of the conduct, for the determination of a proportionate punishment to be imposed in relation to the disciplinary violation committed.” The Supreme Court also specified that “in order to determine the relapse’s constitutive nature, reference must be made to the applicable collective agreements”. As a consequence, the Court concluded that the dismissal at hand is illegitimate because it is based on reprimands that were not expressly cross-referenced in the letter at the basis of the withdrawal. Therefore, before notifying a violation, it is always necessary to verify if precedents exist, as these must necessarily be cross-referenced, under penalty of invalidity of the disciplinary measure.