Invalidity of the disciplinary dismissal ordered in violation of the procedures established by law (Newsletter Norme & Tributi n. 175 Camera di Commercio Italo-Germanica – Vittorio De Luca, Luca Cairoli)

With judgment no. 2859 of 31 January 2024, the Italian Supreme Court dealt with the issue of disciplinary dismissal and its consequences in the event of a violation of the procedures established by law. In the case in question, the company, in applying the dismissal measure against the employee, had not respected the procedure envisaged by Article 53 of Royal Decree no. 148/1931, failing to convene the worker prior to dismissal to allow him to submit justifications in his defence. The Court of Appeal of Palermo, hearing the matter, had attributed the defect to the scope of paragraph 6 of Art. 18, ordering only the payment of compensation. The Supreme Court, on the other hand, established that the violation of this rule entails the invalidity of the disciplinary measure, with such invalidity deriving from the violation of a rule imposed to protect an interest worthy of protection, such as that of the worker’s defence. Therefore, in the Court’s opinion, the worker is entitled to the real protection envisaged by Article 18, paragraphs 1 and 2 of Italian Law no. 300 of 1970, namely the right to reinstatement in the job and to payment of remuneration in arrears and payment of social security contributions since the date of dismissal.