Categories: Insights, Case Law, Publications · News, Publications

Tag: Corte di Cassazione, Dismissal, Licenziamento


28 Nov 2024

Dismissal for just cause without disciplinary contestation: reinstatement also in small companies

In its decision no. 10104 of 12 October 2024, the Court of Rome ruled that in the case of a disciplinary dismissal without prior notice, there is not a mere formal deviation from the procedural scheme of the regulation, but an actual nullity which always gives the employee the right to reinstatement.

The case at issue

The employee, a pastry chef at a commercial establishment with less than 15 employees, was dismissed for just cause without a prior disciplinary notice.

The employee challenged in Court the disciplinary dismissal inflicted, claiming – among other things – a breach of the procedure laid down by Article 7 of Law 300/1970, since the employer had failed to give him prior notice of the charge.

The decision 

The Court of first instance of Rome, preliminarily stated that the employer was an enterprise with fewer than 15 employees and that the employee was hired after the entry into force of Legislative Decree no. 23/2015.

In the absence of the dimensional requirement provided for by Article 18, paragraph 8 and paragraph 9, of Law no. 300/1970, it was therefore necessary to identify the protection applicable to dismissal without prior objection, since this hypothesis was not expressly provided by law.

The Judge has therefore reviewed the regulations contained in Legislative Decree no. 23/2015 in order to identify the protection applicable to the case examined.

The Court of Rome has preliminarily excluded the application of Article 3 (paragraph 2) of Legislative Decree no. 23/2015, since, as known, reintegration protection due to the absence of facts is excluded in the case of companies with less than 15 employees.

Nor did the protection provided by Article 4 of Legislative Decree no. 23/2015, which relates to violations of a purely formal nature, apply to the case under review (whereas the complete absence of a challenge does not constitute a mere formal breach, but rather a breach with substantive consequences).

Even the protection provided for by Article 3 (paragraph 1) of Legislative Decree no. 23/2015, which regulates the hypotheses in which “it is established that the grounds for dismissal for objective justified reason or subjective justified reason or just cause do not exist”, appeared to be not applicable to the case examined.

The Court of first instance, therefore, referred to the Supreme Court’s case law, stating that “the nullity of a disciplinary sanction due to a breach of the procedure aimed at its imposition […] falls within the so-called protective nullities, as it is of a mandatory nature and is intended to safeguard the weaker party in the relationship, namely the employee” (Supreme Courte no. 12770/2019).

In line with the aforementioned case law of the Supreme Court, the Court of Rome therefore ruled that the nullity of a disciplinary sanction for breach of the legislative procedure laid down for its imposition falls – precisely – within the category of protective nullity, given that the guarantee procedure laid down in disciplinary matters (by Article 7 of the Labour Statute) is mandatory and is based on the obvious aim of protecting the weaker party of the contract (i.e. the employee).

On those grounds, the Court of Rome – ruling that the said nullity was established, given the failure to comply with the procedure laid down as a guarantee for the employee – upheld the claim brought by the employee, ordering the employer to reinstate him in service.

Other related insights: 

Subscribe to our newsletter

Contact

Need information? Write to us and our team of experts will respond as soon as possible.

Fill in the form

More news and insights

24 Sep 2026

The concept of “territorial scope” in a non-compete agreement (Top24 Lavoro Ai – Il Sole 24 Ore, 24 September 2026 – Vittorio De Luca and Alessandro Ferrari)

Interpretative issues in light of the most recent case law on the nullity of non-compete agreements due to the indeterminacy of territorial scope By an order issued on…

16 Sep 2026

Did you know that… repeated violations of company procedures may justify the dismissal of a store manager?

The Italian Supreme Court (Labour Section), in Order No. 25231 of 11 September 2026, upheld the lawfulness of the dismissal for just cause of a store manager who…

1 Sep 2026

Company files deleted from the PC: dismissal lawful even without proof of damage

The matter arises from the disciplinary dismissal of an employee performing general secretarial duties who, upon returning the company computer following a change in her duties, handed back…

1 Sep 2026

Overtime work: a summary schedule is not enough, employees must provide strict evidence of both the hours worked and the extent of the overtime performed

With order no. 20700 of 18 June 2026, the Italian Supreme Court once again addressed the issue of overtime work, reiterating that employees claiming overtime pay must strictly…

1 Sep 2026

Did you know that… an individual allowance that has remained unchanged for years may become non-absorbable?

In judgment no. 24475 of 5 August 2026, the Employment Section of the Italian Supreme Court confirmed that an individual allowance (i.e. “superminimo”), although normally subject to the…

3 Aug 2026

Pay Transparency: the first requests from employees are starting to arrive (Il Sole 24 Ore, 3 august 2026 – Vittorio De Luca)

Two months after the decree. Since Legislative Decree 96/2026 came into force on 7 June, according to a flash survey conducted by GIDP, 8% of HR directors have…