Punitive consequences for late claims

The Court of Cassation in its Plenary Sitting, with judgement No. 30985/2017 resolved a conflict of case-law regarding the penalty in the case of disciplinary dismissal affected by a late claim of unlawfulness. The controversy from which the judgement of the Plenary Sitting emerged, arose from an appeal filed at the court by an employee in disagreement with the dismissal for just cause ordered as the implementation of disciplinary proceedings initiated approximately 2 years after the employer became aware of the facts charged to him. Case law presented two contrasting interpretations. According to the first interpretation, the late claim did not have substantial value in terms of employer’s right of withdrawal, thus triggering the indemnification protection as per article 18, paragraph 5 of the Workers’ Charter. The second interpretation deems the immediacy of the dismissal order a fundamental element of the employer’s right of withdrawal, with consequent application of the reintegration protection pursuant to article 18, paragraph 4, of the Workers’ Charter. The Plenary Sitting of the Court chose to adhere – at the end of lengthy proceedings – to the first interpretation, stating the following law principle: “The judgement concerning disciplinary dismissal following the occurrence of a significant and unjustified delay in issuing the claim related to the charge leading to the dismissal and falling “ratione temporis” under the provisions of article 18 of the law No. 300 dated 1970, as amended by paragraph 42 of article 1 of the law No. 92 dated 28.6.2012, gives rise to the application of the indemnification penalty as established in the fifth paragraph of article 18 of the law No. 300/1970”. This means that, upon the occurrence of unlawful dismissal due to a late claim, full indemnification protection shall apply, which means a reimbursement in favour of the interested employee, without prejudice to the termination of the employment relationship, in an amount ranging from 12 to 24 monthly pay based on the last total salary paid.