The invocation of the violation of the principle of immediacy in disciplinary disputes is increasingly popular among the lawyers of workers dismissed for disciplinary reasons, who in this way are hopeful of obtaining the reinstatement in service that, following recent legislative reforms, is no longer the only remedy for an illegitimate withdrawal of employment by the employer.
Even when the hearing only happens after a few weeks of the occurrence of the offending fact, the worker is quick to complain about an alleged slowness in challenging the disciplinary infringement on the part of the employer. In this way the employee who deserved to be dismissed on the grounds of their seriously deficient behaviour, looks for a chance of reintegration into the workforce on the formal level.
Mind you, this possibility still exists today, despite the change of article 18 of the Workers’ Statute (intervened with Law 92/2012) and the epochal transition from a system of sanctions based on reintegration only to a system where the reaction to the unwarranted dismissal is modulated according to the type of behaviour identified with further clarifications, however, which will be considered last with regard to layoffs described in the so-called Jobs Act.
Deliberately leaving aside the debate inherent to the meaning of the "disputed fact" in a material rather than a juridical sense, we note that today reinstatement is only possible when there is no evidence of the disputed fact (see Article 18, paragraph 4 of the workers’ statute and 3, paragraph 2 of Legislative Decree 23/2015), otherwise the worker may be simply provided with an economic compensation (see articles 18, paragraph 5 Workers’ Statute and 3, paragraph 1 legislative decree 23/2015).
Having said that, before going deeper into those arguments that recently brought a section of jurisprudence to recognize the protection offered by reintegration in the case of violation of the principle of immediacy in the dispute, it is certainly useful to clarify the values safeguarded by the principle under examination. Only by doing so, in our opinion, can we understand the real reason why the employer must hasten to challenge and punish the infractions of the employee, thus touching on the key points of the debate in progress and, through them, manage the possible risk of reintegration in the best way, which up to now cannot be eliminated when the violation of the principle of immediacy is identified.
Coming then to the rationale of the principle de quo, it can be said that, on the one hand, in its effectiveness it assures the worker the right of defence (it is evident, in fact, that the passage of time makes it more difficult to reconstruct the facts) and on the other hand, it protects the legitimate expectations that the employee may have placed in the lack of disciplinary connotations of the incriminating fact.
Let us clarify this second protected situation better: what the worker expects, in short, is that the employer behaves according to the principle of good faith and correctness (see articles 1175 and 1375 of the Civil Code), which makes it immediately evident whether or not he intends to penalize him when he has become aware of the infraction committed. In order to do this (not giving rise to the situation referred to above), the employer therefore has the burden (if not the obligation) to start the disciplinary procedure quickly, otherwise the worker may feel that he has been "forgiven" for acts which have been concluded.
Once we have identified and understood the two values protected by the principle of immediacy, we can then proceed to a more careful examination of the two opposing jurisprudential principles to be examined today by the United Sections of the Supreme Court of Appeals. Guidelines that from the violation of the principle of immediacy give rise to two diametrically opposite sanctions: reinstatement or compensation for damages.
As you can read in the ordinance of referral to the United Section of the Supreme Court of Appeal (ordinance no. 10159 of 21.04.2017), there is, in fact, a first orientation (represented by sentence No. 2513/2017) that favours reintegration as the remediation of the situation, seeing in the delay of the contestation or dismissal an implicit demonstration of wanting to continue the relationship on the part of the employer for the apparent failure to carry this out quickly. The second direction, on the other hand, deems that adequate compensation alone is sufficient (Article 18, paragraph 5 or 6, Workers’ Statute, depending on the specific case), arguing that tardiness would not be in any respect to the absence of the disputed fact, rather it would only concern compliance with the general principle of fairness and good faith in the implementation of the employment relationship.
However, while waiting for the United Sections of the Court of Appeal to resolve and clarify these contrasting positions, it seems appropriate to hope that we could go in the direction of excluding the non-existence of the disputed fact (from the legal point of view) and related penalty of reinstatement, in the case of a mere violation of the right of defence of the worker related to the late charge of misconduct (rigidly established, and not only given by presupposition). This is due to the simple fact that, despite the aforementioned possible violation, the employer would still have the opportunity to prove in court the existence of the disputed fact in its material as well as legal component.
Instead, for the case in which either from a delayed contestation of the facts, or from a belated dismissal, the trust of the worker is violated (regardless, therefore, whether or not the simultaneous violation of the other protected value occurs; i.e. the worker's right of defence), there is perhaps a greater risk of reintegration. Moreover, if after having ascertained the delay of the dispute, a judge is convinced that, for acceptance by conduct, the employer intends however to continue the relationship (despite full knowledge of the offense, as in the case brought before Appeals Court (Cass. 10159 cit.), it is plausible that they could go so far as to recognize the absence of a fact having disciplinary relevance, with consequent reintegration in the workforce of the expelled worker.
Well, in the face of the proposed scenario, but also more generally, in order to stem the risk of a reintegration of the offending worker who can be considered "forgiven" because of the large amount of time for reflection taken by his employer (even if the employer is burdened with carrying out an accurate investigation of the facts in question), it is certainly advisable, firstly, to adopt all of the appropriate precautions to avoid a reasonable and legitimate expectation of the disciplinary irrelevance of their own conduct.
In order to prevent the formation of this expectation during the time necessary to obtain full acknowledgment of the disciplinary facts (taking into account that between the employer's interest the acquisition of elements confirming the sure guilt of the employee and the right of the employee to fully defend themselves, the latter prevails, as stated, inter alia, from an Appeals Court ruling (Cass.) 24.05.2017, No. 13018), it may then be useful to resort to precautionary suspension (also provided by some National Collective Work Contracts, CCNL), temporarily removing the worker from the company pending the conduct of the disciplinary procedure while maintaining unaltered their salary.
In order to prevent possible injury to the other value protected by the principle of immediacy, i.e. the right of defence of the worker, the development of internal procedures that facilitate the retrieval and analysis of all the information necessary to substantiate and prove the charge to be contested could be of benefit (especially in industries with high automation or computerization of production processes). And always with a view to avoiding the accusation of injury of the value in question, it could be warmly suggested that any exchange with the worker in the disciplinary procedure is based on the utmost transparency (in compliance with the immanent principles of good faith and contractual correctness envisaged by Articles 1175 and 1375 of the Civil Code), offering them, for example, the possibility of having a copy of the documentation, be it in printed or digital form, which may be useful for the reconstruction of the facts.
Lastly, let us consider a final consideration of the system which makes the reflections mentioned above even more current. In fact, if the above-mentioned jurisprudential guidelines were to be characterized in the "substantial" sense (that is to say that the delay of the dispute or sanction relates to the groundlessness of the accusation), they would acquire importance that was anything but secondary (and could indeed form the basis in principal of recourse by the dismissed worker) in all of the situations to which the Legislative Decree 23/2015 is applicable, whose protections are, also quantitatively, lower than the minimums referred to in the previous legislation.
Moreover, as was anticipated by the first commentators of this little legislative novel and as is being confirmed in the courtrooms, in view of the provision of reintegration as an exceptional occurrence with respect to the recognition of only economic compensation linked to the length of service of the dismissed worker, the tendency of certain operators (lawyers and magistrates) seems to be directed towards letting in through the window what the legislator made leave through the door. In other words, the jurists who oppose reforms that have reduced the scope of Article 18 will tend to widen the interpretative mesh of the protection offered by reintegration, extending it to cases in which it should not be applied (or, so far, it has never been applied) such as the severely unruly collaborator; this, in fact, extensively interpreting the notion of the groundlessness of the fact, within which it risks, to date, to also include the variant of the fact materially and legally existing, but having been challenged or sanctioned too late. (MB - ET)
