Dismissal for poor performance is unlawful if based on conduct previously raised against the worker

With the recent order No 1584 of 19 January 2023, the Italian Court of Cassation addressed dismissal for ‘poor performance’, stating that conduct that had previously been the subject of separate disciplinary proceedings cannot be used as a basis for dismissal on the grounds of poor performance.

Poor performance consists in a breach by the employee of his or her main obligation, which is to perform work, and is therefore a lawful subjective ground for dismissal. Case law has, over the years, identified specific and determined limits within which dismissal for poor performance can be said to be lawful.

The facts of the case

A railway company employee challenged their dismissal which was on the basis of ‘the worker’s poor or insufficient performance fulfilling the duties of their grade’.

The Court of Bologna, in accepting the worker’s appeal under Article 1, paragraph 51, Italian Law No 92/2012, against the order of the same Court, declared the dismissal unlawful, and applied the so-called ‘mitigated’ reinstatement protection under Article 18, paragraph 4, Italian Law No 300/1970.

Similarly, the Court of Appeal of Bologna also declared the dismissal unlawful, fully confirming the Court’s ruling and ordering the company to pay the worker the additional costs of the proceedings.

The first instances Judges come to the conclusion that the dismissal in question was based exclusively on previous disciplinary charges against the worker, which had already been subject to sanctions by measures other than dismissal.  The Judges noted that the employer company had not evidenced, on an objective level, the employee’s below-average performance and, on a subjective level, the agent’s fault, caused by inexperience, incapacity and negligence.

Finally, they pointed out that breach of the ne bis in idem principle, with the earlier exercise of disciplinary powers, resulted in the non-existence of the alleged fact underlying the dismissal.

The Company, therefore, appealed the judgment of the Court of Appeal before the Italian Court of Cassation.

The decision of the Italian Court of Cassation

When examining the matter, the Court of Cassation confirmed the rulings of the lower judges regarding the unlawfulness of the dismissal.

First of all, the Cassation Court Judges reiterated a well-established principle of jurisprudence on the subject of poor performance where the case arises, on an objective level, due to performance below the required standard and, on a subjective level, due to the fault of the worker.

For this reason, continued the Court, poor performance cannot be proved by several previous disciplinary actions against the worker which have already been sanctioned in the past, because this would constitute an indirect substantial duplication of the effects of conduct that has already been exhausted.

According to the Judges of the Italian Court of Cassation, therefore, the employer is not allowed to exercise disciplinary power twice based on the same facts under a different assessment or legal interpretation, as – in the opinion of the Italian Court of Cassation –done by the railway company. The employer, in fact, based the dismissal exclusively on previous disciplinary charges used to evaluate the overall application of the exemption from duty provided for by Article 27, paragraph 1, letter d), of the implementing regulation, Italian Royal Decree No 148/1931 governing the employment relationships of road and tram drivers.

According to the Italian Court of Cassation, therefore, it is certainly possible to include in poor performance multiple incidents, provided that they do not consist of multiple prior disciplinary incidents of employees already sanctioned – without dismissal – in the past.

Finally, the Italian Court of Cassation also confirmed the decision of the Court of Appeal regarding the protection regime applied once the unlawfulness of the dismissal had been ascertained. In particular, the Judges clarified that if the action is no longer punishable, it is equivalent to a fact devoid of illegality and as such attributable to the provision of Italian Law No 300/1970, Article 18, paragraph 4, as amended by Italian Law No 92/2012 (i.e. the ‘mitigated’ reinstatement protection).

In conclusion, therefore, once the employer has exercised its sanctioning power in respect of disciplinary conduct, not only does the power lapse in the hands of its holder, so that the employer can no longer exercise it for the same conduct, but at the same time, the action constituting a disciplinary issue can no longer be sanctioned, losing its unlawful nature due to the exhaustion of the sanctioning power.

Other related insights:

• Poor performance: conditions for dismissal
• Dismissal for poor performance to be linked to subjective and objective parameters