One of the fundamental requirements in the context of disciplinary complaints is consistency between the charge alleged against a worker and the underlying sanction imposed. This principle is aimed at ensuring a fair and just procedure in the context of employment relationships, to prevent the employer from carrying out dismissals based on circumstances over and above or different from those set out in the disciplinary letter.
The recent ruling of the Italian Court of Cassation
The Italian Court of Cassation reiterated the aforementioned principle with Order No. 26042/2023 of 7 September 2023.
The case concerned a worker who had been fired following accusations of forgery and theft of fuel, offences which had simultaneously been the subject of a criminal trial.
The worker, initially dismissed, was subsequently acquitted of these charges in the criminal proceedings, for not having committed the crime.
In the criminal sentence of acquittal, the Court of first instance and the Court of Appeal held the dismissal to be unlawful.
The company challenged the decision before the Italian Court of Cassation, arguing, first, that the requirements under criminal law for the effectiveness of a criminal judgment in civil proceedings were lacking, and, second, that there had been a failure to examine certain additional facts sufficient to irreparably damage the bond of trust with the dismissed worker.
The Court’s decision
The Court of Cassation stated that “in the current procedural system, in the absence of a definitive rule which exhaustively sets out the means of proof, the judge may legitimately use evidence not expressly referred to by law as the basis of his or her decision .” Consequently, in the Court’s opinion, “there is no doubt that the sentence of acquittal for not having committed the crime, even after abridged proceedings, can be classified as atypical evidence of the non-existence of the disciplinary charge falling within the perimeter of the parallel criminal charge, the re-evaluation of which in fact is precluded before the Court of Cassation”.
Furthermore, the Court of Cassation rejected the alleged failure to evaluate “omissions” and “breaches” outside the disciplinary complaint. This is on the basis of the principle that disciplinary complaints may not be changed, which prevents the employer from expanding their scope during the judicial proceedings.
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