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Previous disciplinary measures provide back-up support to dismissal for cause even without contesting the repeated offences (Il Quotidiano del Lavoro de Il Sole 24 Ore, 28 December 2018 – Alberto De Luca, Petra D’Andrea)

A worker was dismissed also on the basis of previous disciplinary offences. Nevertheless, the previous examples were not included in the employer’s disciplinary notice with a view to substantiating the existence of repeated misconduct, but were merely referred to in the notice of dismissal to provide support regarding the harm caused to their relationship of trust.

In explaining her challenge, the employee had, therefore, raised an objection that since the previous disciplinary actions, referred to in her dismissal, represented a constituent element thereof, they should have been included in the subject of the conduct she was accused of, whereas, in this way, they could not be taken into consideration in assessing the proportionality of the sanction she incurred on dismissal.

Both judgements on the merits confirmed the validity of the dismissal, thus also rejecting the exception raised by the employee regarding the failure to notify her repeated misconduct.

When called upon to pass judgement on the matter, the Court of Cassation, with Order no. 30564 dated 26 November 2018, confirmed the legitimacy of the opinion expressed by the trial courts on the matter and excluded the idea that the previous disciplinary actions could be a constituent part of the misconduct she was accused of, but could conversely be taken into consideration in the overall assessment of the harm to the relationship of trust with a view to the cause for dismissal.

Thus, the Court of Cassation expressed its opinion in line with its previous well-established case law, which considers it unnecessary to refer to previous cases of disciplinary misconduct when such previous cases merely represent another negative form of conduct, that is significant in terms of determining the appropriate sanction to be imposed (Court of Cassation, Employment Division, 1909/2018; 9173/1997).

Click here to read the full version of the note to the judgement.