Categories: Insights, Case Law, Publications · News

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

27 Feb 2026

Dismissals: the Corte costituzionale grants broader discretion to judges and greater scope for reinstatement (I Focus del Sole 24 Ore, 26 febbraio 2026 – Vittorio De Luca e Alessandra Zilla)

The regulation of dismissals continues to represent one of the central pillars of Italian labour law, an area of constant tension between freedom of economic initiative and the…

27 Feb 2026

“Food delivery” once again at the center of inspection activities (Norme & Tributi Plus Diritto de Il Sole 24 Ore, 17 febbraio 2026 – Vittorio De Luca e Alessandro Ferrari)

It was recently reported that one of the leading food delivery operators in Italy has been placed under judicial supervision, ordered by an urgent decree of the Public…

26 Feb 2026

Vittorio De Luca at the Welfare & HR Summit 2026

On February 25, 2026, Vittorio De Luca took part in the sixth edition of the Welfare & HR Summit organized by Il Sole 24 Ore. In particular, our…

26 Feb 2026

Italian Supreme Court: the risk assessment document (DVR) as a condition for the lawful use of staff leasing

The absence of a concrete and specific risk assessment, formalised in an adequate Risk Assessment Document (i.e. “Documento di Valutazione dei Rischi” - DVR) bearing a certified date,…

26 Feb 2026

Loss of chance: the Italian Supreme Court reiterates the strict burden of proof borne by the employee

With Order no. 1235 of 20 January 2026, the Italian Supreme Court reiterated the fundamental principles governing compensation for loss of chance in employment matters, with particular reference…

26 Feb 2026

Did you know that… an employee who executes a bank transfer following a phishing email may be dismissed and ordered to compensate the employer for the loss?

With order no. 43873 of 13 February 2026, the Italian Supreme Court - Labor Division - held that the dismissal for just cause of an employee working in…