Disciplinary dismissal between abstraction and concreteness




In the last decade, the Italian parliament has repeatedly changed the regulatory framework that governs the hypotheses and limits of the sanctioning consequences of dismissal. Therefore, it is often difficult for employers to understand whether the choice to terminate an employment relationship is in accordance with the legal rules on the matter. The Supreme Court has established some principles that be useful indicators to adequately manage a dismissal procedure. In particular, the Supreme Court has found that with regard to disciplinary dismissals, for the purposes of assessing the legitimacy of the dismissal, it should not evaluate the disciplinary charge in the abstract, but it is necessary to examine some concrete aspects such as: a) the conduct relevant on a disciplinary level typified by collective bargaining agreement; b) the seriousness of the intentional element; c) the degree of confidence required by the duties; d) the previous methods of implementation of the relationship; e) the duration of the contract; f) the absence of previous disciplinary sanctions; g) the nature and type of the relationship itself (see, Supreme Court’s decision No. 35581 dated November 19, 2021).

In this regard, in order to reduce the risk of litigation, a solution that the employer could adopt to protect itself against facts that can be assessed by the judge as futile and not suitable for dismissal, is to include in the disciplinary code, by way of example, that even minor thefts or goods taken without authorization, regardless of the quantity, can legitimate a disciplinary dismissal.

Avv. Guido Brocchieri


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