The judge may not of his own motion find any ground for nullity of the dismissal other than the one raised as an objection by the party (Il Quotidiano del Lavoro de Il Sole 24 Ore, 29 January 2020 – Vittorio De Luca, Antonella Iacobellis)

In its interesting judgement no. 8 of 2 January 2020, the Supreme Court ruled that, in view of the special nature of the governance of the invalidity of dismissal compared to the general governance of negotiated invalidity, the judge may not of his own motion find any reason for the dismissal to be invalid other than that raised as an objection by the party.

The court case originates from a disciplinary dismissal intimated by the Ministry of Foreign Affairs to an administrative officer of the Consulate General of Italy in São Paulo, Brazil, for alleged irregularities committed in the issuance of visas for entry into Italy.

The dismissal was imposed by invoking Article 25, paragraph 5 letters (a) and (d) of the National Collective Bargaining Agreement 1994-1997 and therefore the cases relating to the ‘commission in service of serious criminal offences‘ (point (a) and the commission of ‘intentional acts or deeds, not covered by point (a), even in relation to third parties, of such seriousness that the employment relationship cannot be continued, even provisionally‘ (letter (d)).

In detail, the conduct from which the sanction of dismissal resulted, carried out between November 2000 and April 2001, was challenged in May 2001, with disciplinary proceedings then suspended pending the outcome of criminal proceedings on the matter which was then followed by dismissal in November 2015.

The Court of Appeal of Rome, having examined the proceedings, had rejected the complaint lodged by the administrative officer against the judgement of the Judge of First Instance of Rome who had rejected the challenge against the disciplinary dismissal, reiterating its lawfulness.

The Court of Appeal had, in fact, held that, notwithstanding the acquittal due to the running of the statute of limitations pronounced in the criminal court, the acts coming from the Criminal Court and evaluated in the disciplinary proceedings had confirmed the prosecuted conduct and legitimated the choice of the Ministry of Foreign Affairs to adopt the non-conservative sanction of dismissal.