Disciplinary dismissal - Sanctions typified in the national collective bargaining agreement
The Supreme Court stated that, in order to evaluate the employer’s decision to proceed with dismissal, the judge is not bound by the conduct typified in the applicable national collective bargaining agreement. As a matter of fact, safter having ascertained the existence of a lawful cause for the dismissal, the judge is required to concretely assess the fact and its proportionality with respect to the sanction imposed by the employer.
In this regard, the Supreme Court has ruled that even when the employee’s behavior is found to correspond to the contractually typified case as a hypothesis that justifies disciplinary dismissal, given the legal source of the notion of just cause or justified subjective reason, it must be carried out in every case a concrete assessment that takes into consideration the seriousness of the behavior and the proportionality between it and the expulsive sanction imposed.
More specifically, in the instant case which regarded a disciplinary dismissal for repeated behaviors of negligence of an employee, the Supreme Court overturned the decision of the appellate judges who had declared the dismissal unlawful. In this regard, the Court confirmed its own previous position according to which the typed hypotheses of dismissal are not binding in an unfavorable sense to the employee. The judge, in fact, must by law also assess the concrete gravity of the condemned behavior, in its objective and subjective profiles, as well as the proportionality of the expulsive sanction applied (see decision dated November 12, 2021, No. 33811).
Avv. Guido Brocchieri
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