The Court of Cassation, in its judgment No. 980 of 17 January 2020, clarified that, in the context of disciplinary proceedings, the state of illness cannot in itself be sufficient to justify the inability to attend the hearing requested in order to make oral counter-arguments in relation to the contested facts.
Facts of the case
The case in question originates from a dismissal for just cause of an employee of Poste Italiane S.p.A. for abuse of his position, having persuaded some colleagues to activate Postpay prepaid cards in violation of certain internal procedures.
In the course of the disciplinary proceedings culminating in the expulsion order, the employee had requested to be heard orally about the serious contested facts within the legal time frame. However, once summoned to the defence, on two occasions, the employee had asked for the postponement of the meeting on the basis of attached certificates of illness.
In the objection and complaint proceedings in the Fornero procedure, both the Court [of First Instance] and the Bologna Court of Appeal confirmed the lawfulness of the dismissal. This was due to the fact that the employer had set a date for the hearing as requested by the employee, which was renewed because of his failure to appear at the first of two hearings due to illness. The company had also warned the employee of his need to complete the disciplinary procedure with the second date with respect to the provision of collective bargaining. As if that were not enough, the worker was invited to submit further written justification which, however, he failed to do.
The employee appealed against the decision on the merits to the Court of Cassation, complaining, among other things, of the infringement of his rights of defence at the disciplinary stage, since the company had not granted the second of the two deferments of the oral hearing requested by him on the grounds of illness.
The decision of the Court of Cassation
The Court of Cassation, in rejecting the worker’s appeal, considered the employer’s actions to be in line with the general principles of fairness and good contractual faith. In fact, at first, it had granted the postponement of the first meeting and, subsequently, had warned the worker of its unwillingness to grant a third date. But not only that. The Company had invited the worker to return his counterarguments in writing so as not to incur in forfeiture for late withdrawal, based on the provisions of collective bargaining in the sector.
According to the Court of Cassation, although it is true that the worker, in the context of disciplinary proceedings, has the right to be heard orally by the employer, it is not quite as true that they have the right to defer the meeting on the basis of any state of illness, since this in itself does not imply the absolute impossibility of leaving home temporarily. Rather, in the Court’s view, it is necessary to specifically allege and prove that the restricting nature of the illness suffered is an obstacle to physically leaving the house in order to constitute the ‘not otherwise protectable’ defence requirement.
The Court of Cassation, in fact, specifies that “the mere allegation, by the worker, even if certified, of the condition of illness cannot be sufficient in itself to justify the impossibility of attending the personal hearing requested, since it is necessary for him to deduce its nature as an obstacle to physically leaving the house (or the place of treatment), so that its postponement to a new date of personal hearing constitutes a de facto defence requirement that cannot otherwise be protected“.
The Court of Cassation, with judgement No. 11895/2017, in declaring unlawful the disciplinary dismissal stated that, in the context of a procedure under art. 7 of Law No. 300/1970, an oral hearing requested by the worker constitutes a prerequisite of his/her right of defence. The Court of Cassation has also clarified that this “unfailing procedural requirement” must be guaranteed even at the presence of extensive and potentially exhaustive written justifications. This is because it is the employee’s request itself that proves that he/she does not deem them sufficient and in any case such to be integrated or clarified in a subsequent hearing.