In its decision no. 10104 of 12 October 2024, the Court of Rome ruled that in the case of a disciplinary dismissal without prior notice, there is not a mere formal deviation from the procedural scheme of the regulation, but an actual nullity which always gives the employee the right to reinstatement.
The case at issue
The employee, a pastry chef at a commercial establishment with less than 15 employees, was dismissed for just cause without a prior disciplinary notice.
The employee challenged in Court the disciplinary dismissal inflicted, claiming – among other things – a breach of the procedure laid down by Article 7 of Law 300/1970, since the employer had failed to give him prior notice of the charge.
The decision
The Court of first instance of Rome, preliminarily stated that the employer was an enterprise with fewer than 15 employees and that the employee was hired after the entry into force of Legislative Decree no. 23/2015.
In the absence of the dimensional requirement provided for by Article 18, paragraph 8 and paragraph 9, of Law no. 300/1970, it was therefore necessary to identify the protection applicable to dismissal without prior objection, since this hypothesis was not expressly provided by law.
The Judge has therefore reviewed the regulations contained in Legislative Decree no. 23/2015 in order to identify the protection applicable to the case examined.
The Court of Rome has preliminarily excluded the application of Article 3 (paragraph 2) of Legislative Decree no. 23/2015, since, as known, reintegration protection due to the absence of facts is excluded in the case of companies with less than 15 employees.
Nor did the protection provided by Article 4 of Legislative Decree no. 23/2015, which relates to violations of a purely formal nature, apply to the case under review (whereas the complete absence of a challenge does not constitute a mere formal breach, but rather a breach with substantive consequences).
Even the protection provided for by Article 3 (paragraph 1) of Legislative Decree no. 23/2015, which regulates the hypotheses in which “it is established that the grounds for dismissal for objective justified reason or subjective justified reason or just cause do not exist”, appeared to be not applicable to the case examined.
The Court of first instance, therefore, referred to the Supreme Court’s case law, stating that “the nullity of a disciplinary sanction due to a breach of the procedure aimed at its imposition […] falls within the so-called protective nullities, as it is of a mandatory nature and is intended to safeguard the weaker party in the relationship, namely the employee” (Supreme Courte no. 12770/2019).
In line with the aforementioned case law of the Supreme Court, the Court of Rome therefore ruled that the nullity of a disciplinary sanction for breach of the legislative procedure laid down for its imposition falls – precisely – within the category of protective nullity, given that the guarantee procedure laid down in disciplinary matters (by Article 7 of the Labour Statute) is mandatory and is based on the obvious aim of protecting the weaker party of the contract (i.e. the employee).
On those grounds, the Court of Rome – ruling that the said nullity was established, given the failure to comply with the procedure laid down as a guarantee for the employee – upheld the claim brought by the employee, ordering the employer to reinstate him in service.
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