Disciplinary proceedings: second thoughts and integration of oral justifications allowed

The Supreme Court of Cassation, with its ruling no. 19846/2020 underlined the need to grant the worker the possibility to fully exercise his right to defence. This right is to be understood as the possibility to have – at a later time after the initial filing of written justifications without request for oral examination – “second thoughts” and, thus, to be inclined to a representation including oral of elements to defend himself.

Facts of the case

In this case the Court of Cassation was asked to rule on the lawfulness of a disciplinary sanction handed down to a worker who had made a request for an oral examination after the submission of written defences denied by the employer.  Specifically, the worker instituted proceedings in order to ascertain the unlawfulness of the aforesaid sanction, complaining precisely of the omitted performance of the oral examination.

During the merits phase, the disciplinary sanction was ruled unlawful since the worker, after submitting the written defences, had “formulated a request for oral examination in compliance with the deadline of five days as per art. 7, law no. 300 of 1970” and therefore “the employer, before applying the disciplinary sanction, should have admitted such examination”.

Therefore, the employer company referred to the Court of Cassation, sustaining that the oral examination should have been made at the same time as the written justifications were submitted and that, consequently, it was not committed to proceed in this manner.

The Supreme Court of Cassation’s ruling

The Court of Cassation, rejecting the employer company’s appeal, confirmed that the worker must be granted “the possibility of full performance of the right of defence and, thus, also the possibility, after having submitted written justifications without formulating any request for oral examination, to have “second thoughts” on the greater defensive adequacy of the representation (even) oral of defending elements”.

Moreover, according to the Court of Cassation, the employer is precluded any decision, even in terms of the compliance and fairness to good faith, on the employee’s conduct with reference to the need or opportunity of the request for defensive integration since the relative evaluation was exclusively referred to the same employee.

Other insights related:

• Disciplinary proceedings: The employer is not obligated to submit corporate documentation
• Disciplinary dismissal is lawful only if there is proportionality
• The principle of immutability of the dispute