Reinstatement due to delayed communication of dismissal. But only in the case of a specific provision of the collective agreement
The cassation judgment of 3rd September 2018 no. 21569 is of interest, as it seems to affirm that disciplinary dismissal imposed beyond the timeframe permitted by the collective agreement is always to be considered illegitimate for the absence of the disputed fact (on the assumption that the employer implicitly accepted the worker's justifications). The result of this is the right of the employee to be reinstated (fourth paragraph of article 18), instead of just receiving compensation equal to 6 months, provided for in the sixth paragraph of the aforementioned article, in cases of ineffective dismissal for failure to comply with a procedural deadline.
In this case, the employer had imposed dismissal after the expiry of 10 working days following the justifications provided for by art. 21, no. 2, co. 3, of the National Collective Contract for Gas-Water Work of 2011.
It seems obvious that the employer has violated a procedural term. It may appear very strange at first glance that the consequence is not the aforementioned ineffectiveness but the much more serious nullity of the dismissal.
The apparent mystery is explained by the fact that the collective rule, in this case, did not merely provide a deadline for the application of dismissal, but explicitly attributed a precise meaning to the delay of the employer, establishing that after the expected term, "these justifications will be deemed accepted".
According to the ruling in question, the contractual provision, by making acceptance of the justifications the consequence of the delay, even if inserted in a context of procedural rules, has a generally substantial standard that regulates the correct exercise of the power of recession of the employer.
A decision to be discussed and which seems to partially frustrate the scope of the changes made at the time to art. 18 of the Fornero law, which only provided for compensation protection in the case of procedural violations, with the illegitimacy of the withdrawal and the loss of the employer’s power to impose sanctions, but certainly constitutes a case in point less serious than termination imposed without the existence of a just cause.
This judgment also seems to contradict the Sezioni Unite (United Chambers), which, in relation to completely similar situations, resolving the interpretative conflict arisen with regard to the disciplinary regime to be applied to illegitimate dismissals due to late disciplinary dispute, states that "the judicial declaration of resolution of disciplinary dismissal resulting from the ascertainment of a noticeable and unjustified delay of the charge based on the withdrawal provision, falling, according to the time in the discipline of Article 18 of the law 300/1970, (as amended by the Fornero Law reform 92/2012, article 1 paragraph 42) entails the application of the fine imposed by the fifth paragraph of article 18. On the other hand, reinstatement in the workplace is not the case, as this sanction applies to different and more serious cases " (see Civil Cassation, Section One, 12/27/2017, No. 30985). (LC)
