DLP Insights

Dismissal of an employee is legal even if other employees were not punished in similar situations

Categories: DLP Insights, Case Law | Tag: Licenziamento, Dismissal

18 Aug 2022

In its order no. 22115 of 13 July 2022, the Court of Cassation stated that the Court’s assessment of similar situations for evaluating unreasonable inequality can only be based on allegations present in the case, such as to allow an investigation and a viable comparison.

Facts of the case

A worker was dismissed because of an accident with his service vehicle. A vehicle with a crane on top, driven by the employee, crashed against a provincial road bridge beam due to its incorrect positioning.

The company dismissed him for just cause. It claimed that the worker’s serious misconduct caused the accident and that he failed to fill out the compulsory parking disk and the tachograph, which attested to the vehicle speed.

The Court of first and second instance declared the dismissal lawful.

Objecting to the trial court ruling, the worker appealed to the Cassation Court, with a single ground of complaint. According to the worker, the Court of Appeal did not consider the different treatment of other employees for similar breaches.

In support of his argument, the plaintiff referred to the principles expressed by the Court of Cassation according to which “even if it is irrelevant for the existence of just cause or justified reason for dismissal, that a similar breach committed by the another worker was assessed differently by the employer, and if the worker’s breach irreparably compromised the fiduciary relationship, those situations may remove the dismissal of its justificatory basis” (see Court of Cassation ruling no. 14251/2015; Court of Cassation ruling no. 5546/2010; Court of Cassation ruling no. 10550/2013).

The Supreme Court of Cassation’s ruling

The Court of Cassation pointed out that the rulings cited by the plaintiff supporting his case made it clear that “the employer could not be required to provide a statement of dismissal reasons compared to others taken in similar cases (see Court of Cassation ruling no. 5546/2010). However, where the differences justifying the different treatment of workers did not emerge during the proceedings, the Court may consider other solutions for the same cases to assess the proportionality of the penalty.”

In the Court’s view, any inequality must emerge during the proceedings through significant elements that do not require a related identification by the employer to justify the different treatment.

Based on these principles, the Court considered that the plea as formulated by the employee lacked the necessary indications that should have been attached in the trial proceedings. The Court dismissed the action brought by the worker and ordered him to pay the legal costs.

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