Art. 18 of Law 300/1970, the remedy of reinstatement presumes the conscious abuse of the employer’s disciplinary power
Case ref: Court of Cassation Order no. 11701 of 17 June 2020
In the case under consideration, the Court of Cassation has ruled on the applicability of the remedy of reinstatement in the case of dismissal for just cause, based on facts that, even though they existed, did not merit such a punitive sanction as dismissal, nor was there express provision for a “conservative” sanction in the applicable NCBA .
In the case in point, the worker, who was in charge of the Accounting and Budget Service, had been dismissed for just cause for having operated without the necessary diligence in carrying out his accounting duties.
The Judges (on the merits), after having found and declared the dismissal unlawful, on the assumption that the contested conduct, even though it existed, “was not of such seriousness and importance as to justify dismissal” ordered reinstatement of the worker pursuant to Article 18(4) of the Workers Statute, despite the fact that it was not expressly provided for as punishable by a “conservative” sanction by the collective agreement applied to the employment relationship.
According to the judges, in fact, in order to apply the remedy of reinstatement, it is not necessary “that the collective rule takes into account the specific conduct of the employee” and is also applicable “where there should be a very specific disciplinary case, even if of a general or “closing” nature, in which the disputed conduct (objectively existing and, although to a lesser extent than the employer’s opinion, disciplinarily illegal) could be pigeonholed”.
On the basis of this conclusion, in the case in question, the judges, on the merits of the case, had ordered the reinstatement of the worker on the basis of a closure rule contained in the CCNL which provided for the imposition of the “conservative” sanction for “those failures which, also in view of the special circumstances which accompanied them, are not so serious as to make a greater punishment applicable”. By appealing to the Supreme Court, the employer thus appealed against this ruling “to have, in short, recognized the protection under Article 18(4), even though the alleged conduct does not correspond to any such type in the collective bargaining provisions“.
The Supreme Court, while confirming the illegitimacy of the dismissal on the grounds that the dismissal was disproportionate, upheld the above grounds of appeal, rejecting the conclusions reached by the judges on the merits. According to the Court of Cassation, the assessment of the sanction being disproportionate with regard to the disputed and ascertained fact, entails the application of the remedy of reinstatement “only if the facts ascertained are specifically covered by the provisions of collective agreements or disciplinary codes applicable as punishable by a “conservative sanction”.
Beyond such a theory, “the disproportion between the conduct ascertained and the expulsive sanction “falls within the “other cases” in which there are no grounds for subjective justified reason or just cause, for which Article 18(5), provides for the so-called strong protection” ((Court of Cassation 05/12/2019, no. 31839; Court of Cassation 19/07/2019, no. 19578; Court of Cassation 14/12/2018, no. 32500, Court of Cassation 12/10/2018, 25534; Court of Cassation 25/05/ 2017, no. 13178)” The Court of Cassation goes on to say that this conclusion is based: “on the assumption of the exceptional nature that the reinstatement protection takes on in the context of the new article 18 of the aforementioned law” and “in application of the general principle that a rule providing for an exception to the general rule must be interpreted restrictively”.
According the Judges, limiting the remedy of reinstatement only to the hypothesis of typical conduct punishable with a conservative sanction under the collective provisions is, moreover, consistent both “with the letter of Article 18(4) which prohibits hermeneutical procedures that extend the exception of reinstatement to the rules on damages” but also “from a systematic point of view, with the clear rationale” of the sanctions regime introduced in 2012.
On this last point in fact, continues the Supreme Court “the reinstatement protection presumes the conscious abuse of disciplinary power, which implies, in turn, a sure and clearly intelligible prior knowledge, by the employer, of the illegality of the dismissal, resulting either from the non-existence of the disputed fact or from the clear traceability of the disputed conduct to the provision of the collective bargaining rules, as among the cases considered unsuitable to justify dismissal (Cassation no. 19578/2019, Court of Cassation no. 12365 of 09/05/2019)”.