Civil Cassation, Section VI, Interlocutory Order, no. 14777 of May 27, 2021
The orientation of the Supreme Court that excludes the applicability of art. 18(4) in cases where the conduct punished with cautionary measures is described in general clauses is unreasonable, in particular, where the difference between the protection of reinstatement under said art. 18(4) and damages under art. 18(5) is based on a set of facts characterized by the collective agreement as punishable with cautionary sanctions.
According to the Supreme Court “the circumstance that some conduct is not typified by collective agreements as susceptible to conservative sanctions, especially in the presence of general formulas, can not be a significant and plausible indication of the willingness of the social partners to exclude such conduct from the list of those deserving of the mildest disciplinary sanctions”.
On this basis, continues the Supreme Court, it does not seem reasonable to attribute, by collective agreements, the conduct punishable with conservative sanctions in the event of unfair dismissal, between reinstatement and damages.
The classification of certain conduct is not conceived by the social partners in the context of the distinction between the two forms of protection: reinstatement and damages. On the basis of the judgment in question, the distinction between the two distinct remedies cannot lie in how the behaviour is classified by collective agreements and disciplinary codes. Otherwise, notes the Supreme Court, there would be an irrational disparity in treatment between less-serious behavior, classified by the collective agreement and punished with conservative penalties, and (disciplinary) facts of equal or lesser importance but not expressly covered by the contractual rules.
Without considering, concludes the Court of Cassation, that if reinstatement is available only when the facts coincides with a specific conduct punishable with conservative measures, it would be easy for the employer to draw up disciplinary rules without classifying conduct punishable with conservative measures, so as to always avoid the risk of reinstatement.