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17.092018

Dismissal after expiry of the term set out in the National Collective Bargaining Agreement implies reinstatement (Il Quotidiano del Lavoro of Il Sole 24 Ore, 17 September 2018 – Alberto De Luca, Lucio Portaro)

With its judgment no. 21569 of 3 September 2018, the Court of Cassation ruled on the consequences of disciplinary dismissal after expiry of the term set out in the Collective Bargaining Agreement.

The ruling originated from the appeal brought by a worker against his dismissal enforced after expiry of the term of 10 days set out in the National Collective Bargaining Agreement for the Gas and Water Industry, effective from the justifications rendered with regard to the conduct in question, a violation upheld from a factual standpoint in the course of the proceedings of first instance. More specifically, the Court of Appeal – in agreement with the ruling of the court of first instance – had granted to the worker only the indemnification protection, excluding that the non-observance of the term set out in the National Collective Bargaining Agreement could imply the annulment of dismissal, thus resulting in the right to be reinstated in the position.

Accepting the worker’s appeal – claiming an erroneous and false application of the law in regard to the failure to grant reinstatement for non-observance of the term – the Court of Cassation – with the ruling in question – quashed the judgment of the court of appeal deeming that the violation of the rule relating to the term for the adoption of a disciplinary measure implies acceptance of the justifications and, consequently, the applicability of the actual protection set out in Article 18 (4), Workers’ Statute, resulting in the reinstatement of the worker concerned.

Specifically, the judges of the Court of Cassation remarked that “on the basis of the provisions set out in Article 21/2 (3), National Collective Bargaining Agreement for the Gas and Water Industry, it does not seem possible to assume any consequences other than the obligation to proceed to the indicated specific activity within the set term and the fictio of the acceptance of the justifications in the event of non-fulfilment of the aforementioned obligation.”

Indeed, the literal wording of the collective bargaining agreement provision (a recurring provision in the main collective agreements for the private industries) is quite clear in stating that after expiry of the agreed term, the justifications of the worker must be deemed accepted by the employer. Therefore, the Court of Cassation remarked that the dismissal “must be considered not only ineffective for the non-observance of a procedural term (just like the untimeliness of the complaint subject matter of the judgment of this Court, Plenary Sitting, no. 30985 of 27 December 2017)… but also unlawful for the inexistence of the conduct complained – as the employer had accepted the justifications in excuse of the worker – and therefore for a total lack of an essential element of just cause.”


Click here to continue reading the note to the judgment published in Il Quotidiano del Lavoro of Il Sole 24 Ore.