DLP Insights

The Supreme Court and the progressive and constant extension of the reinstatement protection

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

23 Jun 2022

In ruling no. 13063 of 26 April 2022, the Court of Cassation extended the scope of application of the reinstatement protection to cases where the contested fact is found to exist and is not among the offences punished by the sector’s collective agreement with a conservative penalty.

The Supreme Court extended the scope of the court’s assessment of proportionality, two weeks after the pronouncement of ruling no. 1165 of 11 April 2022. This ruling confirmed the applicability of reinstatement in cases where the conduct charged to the employee, (although not expressly included in the list of offences punished by the collective agreement with a conservative penalty), falls within the scope through the interpretation, by the court, of the general or flexible clauses included in the relevant collective agreement.

In this way, the judge re-acquired a wide margin for assessment on the proportionality between the contested conduct and the announced dismissal, in the same way as before the Fornero reform, when reinstatement was applicable in cases of lack of proportionality between the contested fact and the dismissal.

The court is given the power to assess – by means of a comparative judgment – the seriousness of the charge laid against the employee in relation to the seriousness that, according to the assessment, should be conferred to any of the other offences punished with a conservative penalty by the collective agreement.

The consequence is that, in this way, a new profile of uncertainty is reintroduced that concerns the interpretation outcome of the collective bargaining provisions, which are often generic and imprecise, and the outcome of the proportionality assessment between the conduct alleged against the employee and the list of offences set out in the relevant collective agreement.

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