The Court of Cassation, with the sentence no. 4879 of 24 February 2020 confirmed that the reinstatement protection provided by article 18, paragraph 4 of Law 300/1970 in case of “inexistence of the claimed fact” is also applicable in the case of inexistence of the claim or if the same contains facts different than those used as the basis for dismissal.

Facts of the case

The court events resulting in the ruling of the Supreme Court witnessed the progression of two decisions aligned by the territorial trial judges.

The Court of Appeals, confirming the ruling of the judge of first instance, considered that:

  • the disciplinary dismissal notified to the worker as unlawful, due to inexistence of the alleged material fact. This was based on the fact that no threatening intent was found in the sentence, “I have nothing to lose, if I get hurt I won’t be the only one to get hurt” declared by the employee as a reaction to the behavior of the employer who had denied him the possibility of going on holiday in August; and
  • violated the principle of immutability of the disciplinary action, deducible from the comparative assessment between the circumstances of the fact declared in the objection to the charge and the different and additional circumstances deducible in the dismissal letter. The latter referred for the first time to actions of “blackmail, threat and injury to the company image” allegedly carried out by the worker.

Lastly, based on these findings the fairness of the applied reinstatement protection was confirmed, without finding the different issue of the proportionality between the dismissal and fact of modest unlawfulness.

Against the second instance decision, the employer filed an appeal in Cassation Court, deducing that procedural mistakes, even serious, can give rise only to a reduced indemnity benefit, while the other benefits may apply when there is a substantial lack of justification for the dismissal.

The decision of the Court of Cassation

The Court of Cassation observed that in the presence of a formally vitiated dismissal, and thus ineffective, due to violation of the motivation obligation, application of a reduced indemnity (still replacing the job) penalty is admissible, as long as variable from a minimum of 6 to maximum of 12 monthly salaries, taking into account the seriousness of the committed formal violation (article 18, paragraph 6 of the Workers’ Statute).

In any case, according to the Court of Cassation, without prejudice to application of different protections included in article 18, paragraphs 4, 5 or 7 – replacing the reduced indemnity benefit and not in addition to it – if, based on the worker’s claim, the unjustness of the dismissal emerges. Unjustness of the dismissal means the inexistence of a subjective or objective just cause or a just cause where the burden of proof, once the worker has explained his claim, remains the responsibility of the employer as per article 5 of Law 604/1966.

The Court of Cassation – faced with the debated issue of identifying an applicable protection regime in the event of initial omission of claim of certain behaviors – thus established that “where the dismissal is notified without disciplinary action, the same continues, as in the past, to be considered unjustified and is punished with reinstatement and limited compensation effects”.

Justification of the reintegration benefit, again according to the Court, is found in the fact that, according to article 18, paragraph 4 of the Workers’ Statute, such protection is provided in case of “inexistence of the claimed fact”, which implicitly cannot also include the supposition of inexistence of the claim.

Based on all of the mentioned motivations, the appeal of the employer company was rejected, since it was considered completely groundless.