ITA 
The Judge may not replace the employer in deciding on the level of disciplinary sanctions, except to reduce them to within the permitted limiti or at the request of the employer.
Supreme Court, Employment Section, Judgment No. 27911 of December 4, 2020
In this judgement, the court found that the judge cannot replace the employer in fixing the severity of the penalty except when “the employer has exceeded the maximum and the judge reduces it to within the permitted limit” or “it is the employer, sued for the annulment of the penalty, to ask for reduction of the penalty and the judge, upholding the employee’s request, considers excessive the penalty already imposed”.
The court goes on to say that “the application of a lesser penalty is legitimate, as it does not imply removal of the entrepreneur’s autonomy and realizes the economy of a future court action to assess the same sanction (see, among others, Cass. nn. 3896/2019; 8910/2007; 15932/2004; 7462/2002; 14841/2000)”.
The Supreme Court upheld the Court of Appeal’s ruling, reaffirming its orientation according to which the judge is precluded, when called on to rule on the legitimacy of a disciplinary sanction imposed, in exercising the power to impose penalties even if only in realigning the same by reducing the measure.
This general principle knows only two exceptions:
– the first is when the entrepreneur has exceeded the maximum limit: in this case, in fact, the judge can reduce it to within the prescribed limit.
– the second is when the employer himself, by entering a plea for annulment of the sanction, asks for it to be reduced. This allows the judge to reduce the sanction, since, by doing so, he does not undermine the autonomy of the entrepreneur, but adapts to a new assessment that the employer has made with reference to the same sanction.
In the case in question, the sanction of suspension from work had been imposed on the assumption that the employee was a recidivist, whereas recidivism could no longer be recognised following the annulment of both sanctions referred to in the disciplinary measure.
Consequently, the Court of Appeal annulled the sanction imposed, without providing for any alternative disciplinary measure.
On these grounds, continues the Supreme Court, “the appeal judges limited themselves to annulling the disciplinary sanction in question, having pointed out that, in the case in question, there did not exist either of the two hypotheses (mentioned above) in which the reduction of the sanction by the judge is allowed, since the company did not merely exceed the limit, but mistakenly applied the contractual regulation of reference, and furthermore, the employer, in entering the proceedings, only requested the rejection of the appeal and did not ask, not even in the alternative, that in case of acceptance of the reason the sanction be reduced by the Judge”.