Failure to comply with the time limits laid down in the Italian national collective bargaining agreement for the notice of the letter of dismissal constitutes a procedural breach resulting in the application of the indemnification penalty under Article 18(6).
The Italian Court of Cassation, with the recent judgment No. 10802 of 21 April 2023, once again ruled on the timeliness of the notice of dismissal, and analysed, on the one hand, the prerequisites for the application of the principle of the separation between the time when the intention to dismiss is expressed and the time when the effects are produced and, on the other hand, the consequences of the penalties associated with the failure to comply with the time limits for the conclusion of the disciplinary proceedings provided for by the national collective bargaining agreement.
The timeliness of the notice of the dismissal
As is known, the law does not specify a precise time limit within which the employer, at the end of the disciplinary procedure, must inform the employee of the termination.
And in fact, Article 7 of the Italian Workers’ Statute does not indicate a ‘final’ time limit within which the penalty must be adopted, but lays down the fundamental principles of disciplinary proceedings, such as the public disclosure of disciplinary rules and the employee’s right to defence himself/herself.
Case law has repeatedly stated that the notice of disciplinary dismissal – as, more generally, the imposition of disciplinary sanctions – must be of a ‘timeliness’ nature, as must the notification of the charge (among others: Court of Cassation No. 17058 of 2003).
Failure to meet this requirement is in fact suggestive of the employer’s willingness to accept any justifications of the employee, against whom the charge has been brought, or in any case to assess the employee’s conduct as not being of such a serious nature as to warrant dismissal: an excessive delay would, in fact, be contrary to the basis of the reasoning adopted (i.e., as expressly provided by Article 2119 of the Italian Civil Code, ‘a ground that does not enable the relationship to continue, even temporarily’).
The ‘timeliness’ nature can then be translated, more precisely, into a specific procedural guarantee provided for by the national collective bargaining agreement, capable of specifying further procedural elements including, for example, the introduction of a mandatory time limit for exercising disciplinary power (Italian Court of Cassation No. 9767 of 2011), i.e. a maximum spatium deliberandi [time period for deciding] established in a very precise measure aimed at shielding the (less precise) rule of the timeliness for the adoption of the disciplinary measure.
Take, for example, Article 240 of the National Collective Bargaining Agreement for Commerce, according to which ‘any disciplinary measure adopted shall be notified to the worker by means of a registered letter with return receipt or other suitable means for certifying the date of receipt, within 15 days from the expiry of the time limit given to the worker to submit his/her counter-arguments’, or the National Collective Bargaining Agreement for the Metalworking Industry, according to which ‘the dispute must be made in writing and disciplinary measures cannot be imposed before 5 days have elapsed, during which the worker can submit his/her justifications. If the measure is not imposed within 6 days following the expiry of the time-limit for justifications, these will be deemed to be accepted’(Article 8, section IV, National Collective Bargaining Agreement for the Metalworking Industry).
In interpreting clauses similar to those indicated above, the case law of the Italian Court of Cassation has pointed out, in a number of rulings, that ‘where the collective bargaining agreement imposes on the employer the duty to adopt the disciplinary penalty, under penalty of forfeiture, within a given time limit from the date of receipt of the justifications provided by the worker, such time limit must be deemed to have been complied with solely on the ground that the employer promptly expressed the intention to impose the penalty, and it is of no relevance that such a declaration is brought to the knowledge of the employee following the expiry of that time limit” (Court of Cassation 4.10.2010 judgment No. 20566 and, in the same sense, Court of Cassation 2.3.2011 judgment No. 5093; Court of Cassation 10.9.2012 judgment No. 15102; Court of Cassation 20.3.2015 judgment No. 5714).
It has been observed, in fact, that the principle of the separation between the time in which the intention to withdraw is expressed and the time in which the effects referable to that intention are produced, affirmed by the Joint Chambers in judgment No. 8830 of 14 April 2010, must be applied whenever, as part of the disciplinary procedure, the time in which the intention is expressed does not coincide with the time in which the addressee becomes aware of it, because otherwise the yardstick of reasonableness and formal and substantive equality between the persons involved would be undermined.
On the basis of the so-called ‘principle of separation’, the employer therefore bears the burden of performing the activity necessary to start the notification procedure (i.e. by sending the registered letter or other suitable means), provided ‘that it is ‘entrusted to a service capable of ensuring adequate reliability free from its interference, by reason of a fair and reasonable balancing of the interests involved’ (Italian Court of Cassation judgment No. 18823 of 2018).
Untimely dismissal: consequences of penalties
On the principle of timeliness in disciplinary proceedings and on the issue of the consequent penalties under the regime of Italian Law No. 92 of 2012, the Joint Chambers of the Italian Court of Cassation intervened which, with judgment No. 30985 of 2017, drew a conceptual distinction between the ‘breach of the rules regulating the manner in which the entire procedural process is carried out at its various stages’ and ‘the breach of the general principle of substantive nature of the timeliness of the dispute when the dispute becomes that of considerable and unjustified delay’.
The Italian Court of Cassation emphasised that in the first case, ‘mere compliance with procedural rules, albeit essential, is relevant’, whereas in the second case, ‘more important requirements’ are taken into consideration, such as that of ‘guaranteeing the employee an effective defence’, to ‘protect (the employee’s) lawful expectation – in relation to the optional nature of the exercise of disciplinary power, in the performance of which the employer must behave in accordance with the standards of good faith – on the lack of disciplinary implications of the offence’ and to ‘remove him/her from the risk of an arbitrary postponement of the start of the disciplinary procedure’.
With regard to the consequent penalties, judgment No. 30985 of 2017 established that in disciplinary dismissal, where the law or the rules of the national collective bargaining agreement provide for time limits for the notification of the grounds for dismissal – which is governed ‘ratione temporis’ by Article 18 of the Italian Workers’ Statute, as amended by Italian Law No. 92 of 2012 -, failure to comply with these time limits constitutes a procedural breach and entails the application of the indemnity penalty provided for in Article 18(6) of said Workers’ Statute, i.e. the so-called weak indemnity protection between a minimum of 6 and a maximum of 12 months’ salary. On the other hand, it held the strong indemnity protection of Article 18(5) to be applicable in the event of a finding of ‘significant and unjustified delay in the notification of the charge underlying the withdrawal measure’ (see, in the same sense, Italian Court of Cassation judgment No. 12231 of 2018).
In the case law precedents of the Italian Court of Cassation, breach of procedural rules has been recognised, for example, where ‘the disciplinary notice, aimed at dismissal, does not contain a sufficient and specific description of the worker’s conduct’ (Court of Cassationjudgment No. 16896 of 2016), as well as in the event of ‘breach of the employer’s obligation to first hear the employee’s defence’ (Court of Cassation judgment No. 7392 of 2022), deeming the protection provided for in Article 18(6) is applicable in such cases.
On the other hand, it was held that ‘the fundamental failure to challenge the infringement leads to the entire procedure being non-existent, and not only to the failure to comply with the its governing rules, with the consequent application of the reintegration protection provided for by Italian Law No. 300 of 1970, paragraph 4 of Article 18, as amended by Italian Law No. 92 of 2012, referred to in paragraph 6 of the aforesaid article as regards the case of absolute lack of justification for the dismissal measure, a disciplinary dismissal adopted without any challenge to the charge should be considered as such” (Court of Cassation judgment No. 25745 of 2016; Court of Cassation judgment No. 4879 of 2020).
Continue reading the full version published on Modulo 24 Contenzioso Lavoro of Il Sole 24 Ore.
