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.