Principle of Law
In its recent judgment No. 17283 of 1 June 2026, the Italian Supreme Court (Corte di Cassazione) examined the legal consequences arising from the employer’s complete failure to serve disciplinary charges prior to dismissal.
The Court held that the omission of the disciplinary charges required under Article 7 of the Workers’ Statute (Law No. 300/1970), while rendering the entire disciplinary procedure legally non-existent and therefore equivalent to the non-existence of the alleged misconduct, does not amount to a ground of nullity under Article 2 of Legislative Decree No. 23/2015.
Accordingly, such procedural defect does not trigger the remedy applicable to null dismissals irrespective of the employer’s size. Where the employer falls below the workforce threshold set out under Article 18 of the Workers’ Statute, the employee remains entitled solely to the compensatory remedy provided for under Article 9 of Legislative Decree No. 23/2015, which expressly excludes reinstatement even where the disciplinary misconduct is deemed non-existent.
Proceedings on the merits
The dispute arose from the dismissal for just cause of an employee following an unjustified absence lasting five consecutive days.
Partially reversing the first-instance judgment, the Naples Court of Appeal declared the dismissal unlawful, holding that the employer had entirely omitted the prior disciplinary charges required by Article 7 of the Workers’ Statute.
According to the Court of Appeal, such omission rendered the disciplinary procedure legally non-existent and was therefore to be treated as equivalent to the non-existence of the misconduct relied upon by the employer.
As regards the applicable remedy, however, the Court considered decisive the employer’s failure to satisfy the statutory workforce threshold. Having established that the company employed fewer than fifteen employees, it excluded the application of the attenuated reinstatement remedy and limited the employee’s relief to monetary compensation under the statutory regime applicable to employers below the dimensional threshold.
The Supreme Court’s Judgment
The employee appealed before the Supreme Court, alleging a breach of Article 2(1) of Legislative Decree No. 23/2015 and Article 7 of the Workers’ Statute.
The appellant argued that the complete omission of the disciplinary charges constituted a breach of a mandatory statutory provision safeguarding the employee’s right of defence and therefore rendered the dismissal null and void. On that basis, the employee contended that the remedy for null dismissals should apply irrespective of the employer’s workforce size.
The Supreme Court dismissed the appeal.
The Court first reaffirmed its settled case law according to which the complete absence of disciplinary charges results in the legal non-existence of the disciplinary procedure and, consequently, in the non-existence of the misconduct relied upon to justify the dismissal. In the Court’s view, prior disciplinary charges constitute the necessary legal and logical prerequisite for assessing the lawfulness of a disciplinary dismissal.
However, the Supreme Court drew a clear distinction between the legal non-existence of the disciplinary procedure and the nullity of the dismissal.
Relying extensively on the long-standing case law inaugurated by the Joint Chambers in judgment No. 4844/1994, the Court reiterated that a disciplinary dismissal served in breach of the procedural safeguards laid down in Article 7 of the Workers’ Statute is unlawful but not null and void. The procedural guarantees provided by Article 7, although mandatory, do not constitute imperative rules whose infringement gives rise to nullity under Article 1418 of the Italian Civil Code.
The Court further observed that the Italian legislature deliberately calibrated the system of remedies by reference both to the seriousness of the defect and to the employer’s workforce size.
Whilst Article 3(2) of Legislative Decree No. 23/2015 provides for reinstatement where the alleged disciplinary misconduct is found not to exist, Article 9(1) of the same Decree expressly excludes the application of that remedy to employers below the statutory workforce threshold.
Accordingly, the Supreme Court concluded that, in the case of employers falling below the dimensional threshold, the complete omission of disciplinary charges—even though constituting a particularly serious procedural defect—cannot circumvent the statutory limitation through the doctrine of virtual nullity.
The judgment therefore confirms that, once the employer is found to fall below the statutory workforce threshold, the employee’s remedies remain confined to monetary compensation, with reinstatement being expressly precluded by Article 9 of Legislative Decree No. 23/2015.
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