Disciplinary dismissal is lawful only if there is proportionality

The Court of Cassation, with judgement No. 20130 dated 17 August 2017, has once again voiced its opinion on the proportionality of the disciplinary sanction against an employee with respect to the employee’s improper conduct pursuant to art. 2106 of the Italian Civil Code. In the case in hand, the dismissal impacted a member of the orchestra of a Foundation who had repeatedly missed verification exams due to an alleged psycho-physical condition, submitting, only in a few occasions, medical certificates. The Foundation had, therefore, ejected the orchestra member upon result of a disciplinary proceeding on the basis of the fact that the member, missing the verification exams, did not allow verifying that he/she maintained the professional requirements necessary for participation into the orchestra. In this respect, the Court of Cassation, mentioning its previous judgements, restated that “on the matter of disciplinary dismissal (…) the principle of proportionality for the penalty assigned for the violation calls for the judge to verify the severity of the fact under the objective and subjective point of view, since the latter can fall from a psychological standpoint under the element of fault as well as that of wilful default”.