Art. 18 of Law 300\/1970, the remedy of reinstatement presumes the conscious abuse of the employer\u2019s disciplinary power<\/p>\n\n\n\n
Case ref: Court of Cassation Order no. 11701 of 17 June 2020<\/em><\/em><\/p>\n\n\n\n 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 \u201cconservative\u201d sanction in the applicable NCBA . Art. 18: la tutela reintegratoria presuppone l’abuso consapevole del potere disciplinare da parte del datore di lavoro Corte di Cassazione, ordinanza n. 11701 del 17 giugno 2020 Con l\u2019ordinanza n. 11701 del 17 giugno 2020, la Corte di Cassazione si \u00e8 pronunciata sull\u2019applicabilit\u00e0 della tutela reintegratoria in caso di licenziamento per giusta causa irrogato per […]<\/p>","protected":false},"author":1,"featured_media":1891,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[44],"tags":[],"yoast_head":"\n
\n\nIn 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.
\nThe Judges (on the merits), after having found and declared the dismissal unlawful, on the assumption that the contested conduct, even though it existed, \u201cwas not of such seriousness and importance as to justify dismissal\u201d 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 \u201cconservative\u201d sanction by the collective agreement applied to the employment relationship.
\nAccording to the judges, in fact, in order to apply the remedy of reinstatement, it is not necessary \u201cthat the collective rule takes into account the specific conduct of the employee\u201d and is also applicable \u201cwhere there should be a very specific disciplinary case, even if of a general or \u201cclosing\u201d nature, in which the disputed conduct (objectively existing and, although to a lesser extent than the employer\u2019s opinion, disciplinarily illegal) could be pigeonholed\u201d.
\nOn 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 \u201cconservative\u201d sanction for \u201cthose failures which, also in view of the special circumstances which accompanied them, are not so serious as to make a greater punishment applicable\u201d.\nBy appealing to the Supreme Court, the employer thus appealed against this ruling \u201cto 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\u201c.
\n\nThe 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.\nAccording 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 \u201conly if the facts ascertained are specifically covered by the provisions of collective agreements or disciplinary codes applicable as punishable by a \u201cconservative sanction\u201d.
\nBeyond such a theory, \u201cthe disproportion between the conduct ascertained and the expulsive sanction \u201cfalls within the \u201cother cases\u201d 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\u201d ((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)\u201d\nThe Court of Cassation goes on to say that this conclusion is based: \u201con the assumption of the exceptional nature that the reinstatement protection takes on in the context of the new article 18 of the aforementioned law\u201d and \u201cin application of the general principle that a rule providing for an exception to the general rule must be interpreted restrictively\u201d.
\nAccording 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 \u201cwith the letter of Article 18(4) which prohibits hermeneutical procedures that extend the exception of reinstatement to the rules on damages\u201d but also \u201cfrom a systematic point of view, with the clear rationale\u201d of the sanctions regime introduced in 2012.
\nOn this last point in fact, continues the Supreme Court \u201cthe 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)\u201d.<\/p>","protected":false},"excerpt":{"rendered":"