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27.032017

Disciplinary dismissal: double checking by the judge

The Court of Cassation, with judgement No. 7166 dated 21 March 2017 has once again deliberated on the subject matter of disciplinary dismissal. In this specific case, the employee, holding the position of emergency technical manager was dismissed after a disciplinary proceeding for having refused to respond to two subsequent support calls respectively for a loss of pressure and a gas leak. The worker filed a claim at the Court of First Instance to declare the dismissal unlawful, but his case was rejected. Therefore, he appealed. The Territorial Court, in a reversal to the judgement of the previous court, declared the dismissal unlawful and ordered the employer to reintegrate the employee in his/her role. In fact, the Court noted that the charge filed against the employee fell within the cases that the National Collective Bargaining Agreement — applied to the work relationship– punished, lacking recurrence, by way of a disciplinary action short of termination. Against the Territorial Court judgement, the employer filed an appeal at the Court of Cassation. The Court of Cassation judges, in the judgement in hand, clarified that the trial judge must double check the correspondence of the disciplinary collective provisions respect to what is established in article 2106 of the Italian Civil Code and determine the invalidity of those that establish as just cause or justified reasons for dismissal the conducts that are by their nature subject only to disciplinary actions short of termination. According to the Supreme Court, the trial judge cannot instead do the opposite, that is expand the list of just causes or justified reasons for dismissal beyond what is established by the independence of the parties. On that basis, the Court of Cassation established that in terms of disciplinary actions, it is necessary to assess the gravity of the breach from an objective and subjective stand point as well as from the stand point of future reliability of the employee regarding the performance established in the contract.