The remedy of reinstatement presumes the conscious abuse of the employer’s disciplinary power (Il Quotidiano del Lavoro de Il Sole 24 Ore, 1 July 2020 – Enrico De Luca, Alessandra Zilla)

With the recent decision no. 1170 of 17 June, the Court of Cassation has provided interesting clarifications on the fourth paragraph of Article 18 of Law no. 300/70 (so called “Statuto dei Lavoratori”), a provision which – as is well known – provides for the reinstatement of an employee unlawfully dismissed if the claimed fact is inexistent or if the fact is punishable by a conservative sanction on the basis of the collective bargaining agreement.

According to the Court of Cassation, the remedy of reinstatement is applicable “only if the facts ascertained are specifically covered by the provisions of collective agreements or disciplinary codes applicable as punishable by a “conservative sanction”.
Beyond such a theory, “the disproportion between the conduct ascertained and the expulsive sanction “falls within the “other cases” in which there are no grounds for subjective justified reason or just cause, for which Article 18, paragraph 5, provides for the indemnity protection”.
This conclusion is based on the assumption of the exceptional nature that the reinstatement protection takes on in the context of the new article 18 and in application of the general principle that a rule providing for an exception to the general rule must be interpreted restrictively.

Continue here to read the full version of the article in Italian language.

Fonte: Il Quotidiano del Lavoro