The Court of Cassation, by judgment no. 12174 dated 8 May 2019, ruled on art. 3, paragraph 2, of the Legislative Decree. 23/2015 stating, “the non-existence of the disputed material fact toward the worker, with respect to whom any assessment regarding the disproportion of the dismissal remains extraneous, includes not only the cases in which the fact has not occurred in terms of its materiality, but also all the hypotheses in which the fact, having occurred, bears no disciplinary significance“.
The facts
The Court of Genoa, hearing an action brought by a worker dismissed for having left her job, declared the disciplinary dismissal ordered unlawful and terminated the employment relationship from the date of dismissal itself, ordering the employer (in absentia) to pay compensation equal to four months’ salary, plus the costs of litigation.
The worker appealed the first instance decision in order to obtain recognition of the reintegration protection provided for by art. 3, paragraph 2, of the Legislative Decree 23/2015 on the ground that the contested material fact did not exist.
The District Court, in rejecting the exception formulated by the worker, observed that the conduct challenged had not been denied by the same in its historical reality, but rather it could not be considered, for the circumstances in which it occurred, to possess such gravity as to justify the removal measure.
Therefore, in the opinion of the Court of Appeal, the Court of First Instance correctly recognised the protection of damages pursuant to Article 3(1) of Legislative Decree No. 23/2015, quantified in 4 monthly instalments.
The employee appealed the Court of Appeal judgment before the Court of Cassation, invoking two grounds.
Applicable standards
The case in question falls within the scope of the Legislative Decree 23/2015, issued in implementation of Law 183/2014 which delegated, among other things, the Government to adopt one or more legislative decrees “in order to strengthen the opportunities for entry into the world of work of those seeking employment, as well as to reorganize existing employment contracts to render them more consistent with the current needs of the employment and production context and to render the inspection activity more efficient.”.
Among the principles and guidelines that the Government had to follow in completing this task, Law 183/2014 had also established “the provision for new hires under permanent contracts under increasing protection“, with respect to which the possibility of reintegration into employment had to be limited to null and discriminatory dismissals and specific cases of unjustified disciplinary dismissal.
In execution of these principles and criteria, the Legislative Decree 23/2015 was issued establishing the protection of workers, hired after 7 March 2015 (date of entry into force of the Decree) and for specific categories of workers who, although hired before that date, are recipients of the same, reintegration in residual cases. This occurred without changing the existing legal concepts of “just cause” and “justified” employer withdrawal.
Specifically, paragraph 1 of Italian Legislative Decree no. 23/2015 provides, “in cases where it is established that there is no dismissal for a justified objective reason or for a justified subjective or just cause, the judge shall declare the employment relationship terminated at the date of dismissal and shall order the employer to pay an indemnity (…)“.
Paragraph 2 of the same article provides, “only in the event of dismissal for justified subjective reason or just cause in which the absence of the material fact alleged against the worker is directly demonstrated in court, in respect of which there is no assessment of the disproportion of dismissal, the court cancels the dismissal and condemns the employer to the reintegration of the worker in the workplace and the payment of compensation (…)“.
The decision of the Court of Cassation
The Court of Cassation argues that the articulation of the protections provided for in Legislative Decree no. 23/2015 recalls the one already undertaken by Law 92/2012 (Fornero Law), also in its logic of considering the residual reintegration with respect to the indemnification protection.
Again in the opinion of the Court of Cassation, the expressions used by the Legislative Decree no. 23/2015 (“disputed material fact”) cannot but refer to the same concept of “disputed material fact” as developed by the case-law on lawfulness in relation to Article 18(4) of Law No 300/1970.
The fact that an event has occurred, but is disciplinarily completely irrelevant, cannot be punished using a different treatment from that provided for in cases where the event has not been committed. This is because the dismissal needs justification and is illegitimate if it is not supported by a “justified reason” or a “just cause”.
In support of this assumption, according to the Court of Cassation, there is the constitutionally oriented reading of the rule, having to affirm that “any judgment of responsibility, in whatever field of punitive law is expressed, requires for the material fact ascribed, from a subjective point of view, the referability of the same to the agent and, from an objective point of view, its referability in the actions legally appreciable as a source of responsibility”.
To reinforce this conclusion, one must consider that art. 3 of Legislative Decree no. 23/2015, similar to Article 18(4) of Law No 300/1970, refers to the dispute and, therefore, the “material fact complained of” is the fact that it is not only materially integrated but it also bear disciplinary significance.
The different lexical solution adopted by the legislator in 2015 is explained, according to the Supreme Court, by “the need to dispel interpretative doubts which at the time were well present in the jurisprudential and doctrinal debate regarding paragraph 4 of Article 18 of the new text“.
The Court thus overturned the ruling of the Court of Appeal, referring the case back to the court dealing with the substance of a case to ascertain whether the fact, although materially occurring, was of disciplinary importance.
