Categories: Insights, Case Law

Tag: Art. 18, Corte di Cassazione, Licenziamento disciplinare


24 Sep 2018

Consequences of dismissal after expiry of the term set out in the Collective Bargaining Agreement. Reinstatement

With its judgement no. 21569 dated 3 September 2018, the Court of Cassation ruled on the consequences of disciplinary dismissal after expiry of the term set out in the Collective Bargaining Agreement. The ruling originated from the appeal brought by a worker against the dismissal enforced after expiry of the terms set out in the National Collective Bargaining Agreement for the Gas and Water Industry, due to the justifications rendered with regard to the conduct in question. More specifically, the court of appeal had granted to the worker only the indemnification safeguard, excluding that the non-observance of the terms set out in the National Collective Bargaining Agreement could imply the annulment of dismissal, thus resulting in the right to be reinstated in the position. Accepting the worker’s appeal, the Court of Cassation quashed the judgment of the court of appeal deeming that the violation of the rule relating to the term for the adoption of a disciplinary measure implies acceptance of the justifications and, consequently, the applicability of the actual protection set out in Article 18 (4), Workers’ Statute, resulting in the reinstatement of the worker concerned. Specifically, the judges of the Court of Cassation remarked that ‹‹on the basis of the provisions set out in Article 21/2 (3) National Collective Bargaining Agreement for the Gas and Water Industry, it does not seem possible to assume any consequences other than the obligation to proceed to the indicated specific activity within the set term and the fictio of the acceptance of the justifications in the event of non-fulfilment of the aforementioned obligation››. Therefore, according to the Court of Cassation, the dismissal ‹‹must be considered not only ineffective for the non-observance of a procedural term but also unlawful for the inexistence of the conduct complained – as the employer had accepted the justifications in excuse of the worker – and therefore for a total lack of an essential element of just cause. The logical/legal reasoning made by the Court of Cassation seems to stir up the debate on the relevance of procedural terms when dealing with sanctions. This is an interpretative doubt that in fact may have particularly different consequences – to be evaluated on the basis of the applicable contractual provision (which may also not provide for the automatic effect of the acceptance of justifications after expiry of the applicable term) – and result in different protection schemes.

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

10 Mar 2026

The transfer of the employee is lawful when there is incompatibility with the company environment (Camera di Commercio Italo-Francese – Vittorio De Luca, Silvia Zulato)

With Order No. 4198 of 25 February 2026, the Italian Supreme Court (Court of Cassation) – Labour Section – reaffirmed that a situation of environmental incompatibility may justify…

3 Mar 2026

Employee monitoring: when “bossware” becomes a legal risk (Agenda Digitale, 2 marzo 2026 – Martina De Angeli)

Monitoring workers through digital tools is a rapidly expanding practice, accelerated by the spread of remote work and the digital transformation of companies. Before adopting these systems, however,…

3 Mar 2026

Melismelis signs the campaign for the 50th anniversary of De Luca & Partners

For the historic labor law firm, the agency developed the 50th-anniversary logo and advertising campaign, managed online and offline media planning, and renewed the website’s visual identity. Milan,…

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…