The position of the Supreme Court on article 18, as revised by the Fornero law
The Supreme Court of Cassation, with the recent ruling number 1891 of 28th January 2020, reiterated its position according to which the assessment of non-proportionality of the disciplinary dismissal with respect to the disputed and ascertained fact may involve the reintegration of the worker, pursuant to art. 18, paragraph 4 of the Workers' Statute, only in the event that the disconnect between the seriousness of the conduct carried out and the sanction adopted results from the provisions of collective agreements, which expressly correspond to a conservative sanction to the disciplinary offence. Outside of this case, the disproportion between the conduct and the expulsion sanction falls within the "other hypotheses" provided for in the fifth paragraph of art. 18, for which only indemnity protection is provided.
The revision introduced by the so-called Fornero law (no. 192 of 2012), reconsidering reintegration with less favour, has in fact introduced a graduation of the hypotheses of illegality of the expulsion sanction dictated by disciplinary reasons, placing compensation protection as a rule, to be considered an expression, according to the will of the legislator, of "a general value" (Cass. SU 27th December 2017, no. 30985).
The reintegration protection constitutes instead the exception to the ratio of the new regime, being able to be recognised only in cases of illegality of greater evidence, which presuppose the conscious abuse of disciplinary power by the employer, related to the evident illegality of the expulsion order, as it derives from the non-existence of the contested fact or from the clear traceability of the same in the context of a case envisaged by a collective rule and considered by the social parties to be unsuitable to justify the expulsion of the worker. (LC)
