ITA 
Published on Sole24Ore - NT Lavoro - on 27/04/2023
A dismissal for just cause notified over the time limit provided for by the NCBA applied to the employment was deemed unlawful by the Court of first instance and by the Court of Appeal. In particular, the NCBA provides that «the notice of the measure must be sent written to the employee within and no later than 30 days from the deadline to submit the justification, falling which the disciplinary proceedings shall be deemed to have been closed».
In the specific case, the company send, a first time the measure, within the deadline provided for by the NCBA, but to a wrong address and the notice didn’t go through. Then, the company notified the measure to the correct address, but 10 days later thant the deadline provided for by the NCBA. The Court of merit established that the failure to meet the deadline determined that the disciplinary proceedings was settle with the archiving and that it has to be applied the measure of the reinstatement, provided for by the Article 18 (4), L. 300/1970.
The Company appealed to the Court of cassation, claiming that the first notification had to be considered succeeded, because, despite the wrong address indication, the postman had unsuccessfully searched for the employee at all the neighbourhood. Under a different aspect, the company contested the measure of the reinstatement granted by the Court of merit, noting that the failure to meet the deadline of course does not imply ex sé the denial of the fact of which the employee has been accused nor the presumption iuris et de iure of a positive assessment thereof by the employer, nor even the consummation of the disciplinary power by acquiescence, since the delay may well be exclusively attributable to mere (even if culpable) error.
The Court of cassation (judgment 10802/2023) rejected the first claim noting that the wrong notification was a company’s fault, since it is excluded that the notice of a dismissal communication that doesn’t go through for an employer’s fault could prevent forfeiture.
With regard to the second claim, the Court of cassation recalls the Unified Section's judgment no. 30985/2017 about the timeliness principle that characterize the disciplinary proceeding and the topic of the sanction consequences under the L. 92/2012, which noted a conceptual distinction between the «infringement of the rules governing the manner in which the entire procedural process is carried out in its various stages, and infringement of the general principle of substantive character of the timeliness of the challenge when it takes on the character of considerable and unjustified delay».
According to the Court of cassation in the first case, mere compliance with procedural rules is relevant, whereas in the second case, more important requirements are taken into account, such as that of guaranteeing the employee an effective defence, of protecting his legitimate expectations in relation to the optional nature of the exercise of disciplinary power, and of removing him from the risk od an arbitrary postponement of the commencement of disciplinary proceedings.
In the specific case, having ascertained the violation of the terms provided by the collective agreement for the communication of the final measure of the disciplinary procedure, the notice of dismissal was sent with a 10-day delay and according to the judges of merit the employer’s disciplinary power had to be considered already consummated given the expiry of the maximum term agreed upon. This conclusion contrasts with the principles set out by the Unified Sections, according to which failure to comply with the time limits provided by the collective agreement for the communication of the letter of dismissal constitutes a violation of a procedural nature and entails the application of the indemnity sanction of Article 18 (6), while a greater protection for the employee can only be achieved in the face of the significant and unjustified delay in the notice of dismissal, as well as in the disciplinary notice, capable of damaging not only in a formal but also in substantive sense the principle of timeliness.
