When some charges have not previously been challenged and then mentioned within the dismissal letter, it constitutes «non-existence of the disputed facts».
Case ref: Court of Cassation, Employment Section, Judgment no. 4879 of 24 February 2020
With Judgment no. 4879 of 24 February 2020, the Court of Cassation ruled on the consequences of a disciplinary dismissal not preceded by the full contestation of the charges.
According to the Supreme Court, when some charges have not previously been challenged under art. 7 of the Workers’ Statute, and then mentioned within the dismissal letter, it constitutes «non-existence of the disputed facts», for which the remedy is reinstatement under Article 18(4) of Law 300/1970.
The Court reminds us that in the case of formal procedural defects under art. 18(6) of the Workers’ Statute, the reduced remedy of damages is applied, without prejudice, however, to the application of the other remedies provided by art. 18, paragraphs 4, 5 or 7 – in substitution of the reduced remedy and not in addition to it – if it emerges, at the instance of the worker, that the dismissal is unjustified.
The problem arises, however, in applying a literal interpretation to the law, which could lead to this reduced remedy being applied to cases where the dismissal for subjective reasons is not preceded by a disciplinary challenge of the facts pursuant to Art. 7 of Law no. 300 of 1970.
In relation to such a breach, according to the Supreme Court, considering this to be a merely procedural defect ‘the employer could articulate for the first time in court, after reading the employee’s claim, the facts underlying the dismissal, being able to benefit, where such facts are proven and capable of constituting a valid ground for dismissal, from a reduced sanction compared to the greater sanction provided for in the same provision’.
The Supreme Court goes on to say that “a different interpretation seems preferable according to which, where a dismissal is ordered without disciplinary challenge, the same continues, as in the past, to be considered unjustified and is sanctioned with reinstatement” since it is a matter of «non-existence of the disputed fact» under Article 18(4) of the Workers’ Statute.
Therefore, if the company grounds the dismissal on conducts that have not previously been challenged, this radical defect determines the non-existent of the entire disciplinary procedure.
In handing down the judgement, the Court found there to be not just a defect in form, but a more serious matter, i.e. non-existent of the facts.
On those grounds, the Supreme Court dismissed the appeal brought by the company, confirming the illegality of the dismissal and as a consequence the right of the employee to be reinstated.