The right to have access to the records throughout the disciplinary procedure

With its judgement No. 7581 of 27 March 2018, the Court of Cassation has once again dealt with the delicate subject of the so-called right to have access to the records within a disciplinary procedure. In the case at issue, the judges ruling on the merits of the case held the dismissal notified to an employee to be unlawful. The employee had attended hearings for legal traineeship purposes, on days on which the employee proved to be absent for illness or present at work. In order to ground his own complaint, the employee claimed the employer’s refusal to make the documentation grounding the charge available, which was necessary in order to be able to correctly exercise the respective right of defence, since the facts dated back to the past and concerned occasional behaviours such as to prevent him from remembering the specific episodes. In upholding the ruling on the merits of the case, the Court stressed that, even if article 7 of Law No. 300/1970 did not weigh an obligation upon the employer to make the documentation available to the employee, against whom a disciplinary formal notice had been brought and on which the latter is based, the employer “must offer the consultation of the company documents to the person charged, where the examination of any such documents is necessary for the purpose of allowing the opposite party to have an appropriate defence, based on the principles of fairness and good faith in the performance of the contract”. The stance put forward fully complies with the principle pursuant to which the employee’s right of defence must not be limited within the scope of a disciplinary procedure, subject to the unlawfulness of the notified dismissal, if any.