When the preordained challenge against the dismissal is timely

With judgement of 14787/2019, the Court of Cassation once again handled the sensitive question of the timeliness of the disciplinary challenge with respect to the charge. In particular, the jurisprudential findings on the matter have been underlined, according to which the principle of the immediacy of the challenge of the charge and that of the timeliness of the employer’s withdrawal must be understood in a relative sense. These principles may be compatible with an interval of time necessary for the establishment and assessment of the disputed facts, as well as for the assessment of the justifications provided by the worker. Therefore, the disciplinary notice for dismissal is to be considered timely when, although not immediate with respect to the charge, it is communicated following the decision to indict or the outcome of the criminal proceedings involving the worker.

Facts of the case

The ruling stems from the appeal lodged by two employees of a supervisory institution which, after having been suspended as a precautionary measure following the opening of criminal proceedings for the offences of fraud against the same employer company, had been reinstated for economic reasons and then fired on the spot.

In this case, since the disciplinary challenge had been postponed to a time after the immediacy of the facts, i.e. the outcome of the investigations resulting from the criminal proceedings, the workers challenged the dismissal ordered against them for violation of Article 7 of Law No. 300 of 1970. Specifically, they complained about the failure to open the actual disciplinary procedure immediately after the order for precautionary suspension, assuming, therefore, that they had suffered a violation of their rights of defence. This is because they were given notice of disciplinary dismissal on the basis of facts which had not previously been challenged against them.

The decision of the Court of Cassation

The Court of Cassation, partly upholding the rulings of the judges on the merits, found the employer’s decision to postpone the start of the dispute until the outcome of the criminal investigation to be compatible with the principle of timeliness of the dispute. The Court thus found it understandable that there was a time lag between the date on which the investigative measures were handed over to the employer and the notification of the disciplinary complaint.

The ruling in question is thus in line with the interpretation already consolidated on the subject, confirming that, in the case of precautionary suspension of a worker subject to criminal proceedings, the disciplinary challenge can certainly be deferred until the outcome of the investigations of the criminal proceedings.

The rationale behind this decision lies in the need to provide the employer with certain elements that allow them to make a considered assessment of the facts to be disputed against the employee, also from a point of view of their interest.

The Court of Cassation also took the opportunity to renew itself with regard to the just cause of dismissal. The notion of just cause, in fact, has a “flexible” and “indeterminate” content that requires it be supplemented by the contribution of the interpreter through valuations and judgements which can be inferred from “standards” in accordance with the values of the system existing in the company.

So, the Court of Cassation has censored the appeal ruling in this sense since it did not take into account the aforementioned “standards”. In its view, the judgement under appeal did not focus, in particular, on the adoption by the employer of conduct incompatible with the impossibility of a temporary continuation of the employment relationship. According to the Court, this employer attitude is in stark contrast to the continuation of the just cause of the withdrawal expressing a will that is contrary to the employer’s intention to resolve.

Consequently, in the opinion of the Court of Cassation, the reinstatement in service of employees previously suspended, in the presence of criminal investigations for alleged fraud, is incompatible with the subsequent dismissal on the spot carried out against them for the same facts.