The Court of Cassation, with judgement 14063 of 23 May 2019, returned to rule on the principle of proportionality between the expulsive sanction and the non-fulfilment, specifying that the judge cannot be exempt from the concrete assessment of proportionality between the fact disputed and the sanction adopted, even if the conduct is indicated in the examples provided by the collective bargaining as a case of dismissal.
In this case, the worker was dismissed for improperly using her employee loyalty card to purchase products for a family member with undue advantages.
The judge of first instance rejected the employee’s appeal with a decision that was later confirmed in the Court of Appeals, finding that the improper use of the card, in addition to being expressly prohibited by company regulations, had seriously violated the duties of fairness incumbent on the employee and was likely to irremediably damage the bond of trust legitimizing the dismissal.
The Court of Cassation found that in assessing the disciplinary relevance of the conduct, the judges with jurisdiction failed to make a comparative assessment between the conduct of the employee and the provisions of the collective agreement (in this case that of the commercial sector), which reserve the expulsive sanction only for cases of much higher level of intentionality and offensiveness, such as to constitute a possible crime.
In particular, the Court – in line with the established approach – has confirmed that the “just cause” as event that does not permit the continuation of the employment relationship even temporarily incorporates a “general clause” dictated by Article 2119 of the Civil Code and, therefore, must be implemented through the enhancement of external parameters of a legal nature.
In the context of that assessment, the court is not bound by the provisions of the disciplinary code of the collective agreement. In fact, even if the conduct penalised corresponds to the contractually typified case, it must still be referable to the concept of just cause by means of a concrete assessment of the proportionality between the sanction and the violation, also from the subjective point of view of fault and wilful misconduct.
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