Same conduct, different sanctions

It is legitimate to impose different disciplinary sanctions on employees for the same misbehavior.

Case ref: Court of Cassation, Employment Section, 7 May 2020, no. 8621

With Ruling of 7 May 2020, the Court of Cassation revisits the question of the legitimacy of imposing different disciplinary sanctions on employees responsible for the same sanctionable conduct. In the present case, the foreman was dismissed for just cause because he had not reported to his superior or to the workers’ representative for safety (RSPP), the systematic tampering, by the truck drivers, of the device that slowed down the trucks. The foreman contested the legitimacy of the dismissal, also complaining about the unfair treatment compared to the workshop manager who was given a less severe sanction.

The Supreme Court affirmed the legitimacy of the dismissal by virtue of the seriousness of the facts and circumstances, ruling out the possibility that the conduct of the plaintiff could fall within the scope of conservative sanctions. With regard to the difference in treatment complained of by the plaintiff, the Judges pointed out that, for the purposes of the existence of just cause or justified subjective reason, «if it is established that the failure of the dismissed worker was such as to irretrievably compromise the relationship of trust, it is generally irrelevant whether a similar failure, committed by another employee, was assessed differently by the employer».
Nevertheless, the Supreme Court continues «the identical situation could be used by the judge to verify the proportionality of the sanction adopted, thus depriving the dismissal of its justification».
In the case in question however, the Court found that although they wanted to consider the conduct of the two employees as identical, the relevant infringements could not be considered identical, in view of the different roles covered, the subjective element and the existence of previous failures by the foreman to comply with the law. It also turned out that it was the workshop manager who had told the plaintiff of the tampering.

In light of all the above, the Supreme Court confirmed the legitimacy of the dismissal as well as the difference in treatment, justified by the different level of seriousness of the violations committed.