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.<\/p>\n\n\n\n
Supreme Court, Employment Section, Judgment No. 27911 of December 4, 2020<\/em><\/p>\n\n\n\n In this judgement, the court found that the judge cannot replace the employer in fixing the severity of the penalty except when \u201cthe employer has exceeded the maximum and the judge reduces it to within the permitted limit\u201d or \u201cit is the employer, sued for the annulment of the penalty, to ask for reduction of the penalty and the judge, upholding the employee\u2019s request, considers excessive the penalty already imposed\u201d. Il Giudice non pu\u00f2 sostituirsi al datore di lavoro nella graduazione della sanzione disciplinare, salvo che per ricondurla entro il massimo edittale o su richiesta del datore Corte di Cassazione, sezione lavoro, sentenza n. 27911 del 4 dicembre 2020 Non \u00e8 consentito al Giudice di sostituirsi al datore di lavoro nella graduazione della sanzione da […]<\/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
\nThe court goes on to say that \u201cthe application of a lesser penalty is legitimate, as it does not imply removal of the entrepreneur\u2019s 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)\u201d.
\nThe Supreme Court upheld the Court of Appeal\u2019s 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. \nThis general principle knows only two exceptions:
\n\u2013 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.
\n\u2013 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.
\nIn 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. \nConsequently, the Court of Appeal annulled the sanction imposed, without providing for any alternative disciplinary measure.
\nOn these grounds, continues the Supreme Court, \u201cthe 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\u201d.<\/p>","protected":false},"excerpt":{"rendered":"