The Supreme Court of Cassation, with its ruling no. 19846/2020 underlined the need to grant the worker the possibility to fully exercise his right to defence. This right is to be understood as the possibility to have – at a later time after the initial filing of written justifications without request for oral examination – “second thoughts” and, thus, to be inclined to a representation including oral of elements to defend himself.
In this case the Court of Cassation was asked to rule on the lawfulness of a disciplinary sanction handed down to a worker who had made a request for an oral examination after the submission of written defences denied by the employer. Specifically, the worker instituted proceedings in order to ascertain the unlawfulness of the aforesaid sanction, complaining precisely of the omitted performance of the oral examination.
During the merits phase, the disciplinary sanction was ruled unlawful since the worker, after submitting the written defences, had “formulated a request for oral examination in compliance with the deadline of five days as per art. 7, law no. 300 of 1970” and therefore “the employer, before applying the disciplinary sanction, should have admitted such examination”.
Therefore, the employer company referred to the Court of Cassation, sustaining that the oral examination should have been made at the same time as the written justifications were submitted and that, consequently, it was not committed to proceed in this manner.
The Court of Cassation, rejecting the employer company’s appeal, confirmed that the worker must be granted “the possibility of full performance of the right of defence and, thus, also the possibility, after having submitted written justifications without formulating any request for oral examination, to have “second thoughts” on the greater defensive adequacy of the representation (even) oral of defending elements”.
Moreover, according to the Court of Cassation, the employer is precluded any decision, even in terms of the compliance and fairness to good faith, on the employee’s conduct with reference to the need or opportunity of the request for defensive integration since the relative evaluation was exclusively referred to the same employee.
Other insights related:
The Court of Cassation, in its judgment No. 980 of 17 January 2020, clarified that, in the context of disciplinary proceedings, the state of illness cannot in itself be sufficient to justify the inability to attend the hearing requested in order to make oral counter-arguments in relation to the contested facts.
Facts of the case
The case in question originates from a dismissal for just cause of an employee of Poste Italiane S.p.A. for abuse of his position, having persuaded some colleagues to activate Postpay prepaid cards in violation of certain internal procedures.
In the course of the disciplinary proceedings culminating in the expulsion order, the employee had requested to be heard orally about the serious contested facts within the legal time frame. However, once summoned to the defence, on two occasions, the employee had asked for the postponement of the meeting on the basis of attached certificates of illness.
In the objection and complaint proceedings in the Fornero procedure, both the Court [of First Instance] and the Bologna Court of Appeal confirmed the lawfulness of the dismissal. This was due to the fact that the employer had set a date for the hearing as requested by the employee, which was renewed because of his failure to appear at the first of two hearings due to illness. The company had also warned the employee of his need to complete the disciplinary procedure with the second date with respect to the provision of collective bargaining. As if that were not enough, the worker was invited to submit further written justification which, however, he failed to do.
The employee appealed against the decision on the merits to the Court of Cassation, complaining, among other things, of the infringement of his rights of defence at the disciplinary stage, since the company had not granted the second of the two deferments of the oral hearing requested by him on the grounds of illness.
The decision of the Court of Cassation
The Court of Cassation, in rejecting the worker’s appeal, considered the employer’s actions to be in line with the general principles of fairness and good contractual faith. In fact, at first, it had granted the postponement of the first meeting and, subsequently, had warned the worker of its unwillingness to grant a third date. But not only that. The Company had invited the worker to return his counterarguments in writing so as not to incur in forfeiture for late withdrawal, based on the provisions of collective bargaining in the sector.
According to the Court of Cassation, although it is true that the worker, in the context of disciplinary proceedings, has the right to be heard orally by the employer, it is not quite as true that they have the right to defer the meeting on the basis of any state of illness, since this in itself does not imply the absolute impossibility of leaving home temporarily. Rather, in the Court’s view, it is necessary to specifically allege and prove that the restricting nature of the illness suffered is an obstacle to physically leaving the house in order to constitute the ‘not otherwise protectable’ defence requirement.
The Court of Cassation, in fact, specifies that “the mere allegation, by the worker, even if certified, of the condition of illness cannot be sufficient in itself to justify the impossibility of attending the personal hearing requested, since it is necessary for him to deduce its nature as an obstacle to physically leaving the house (or the place of treatment), so that its postponement to a new date of personal hearing constitutes a de facto defence requirement that cannot otherwise be protected“.
The Court of Cassation with ruling No. 15523/2018 had the opportunity to clarify, once again, a few important cases concerning a dismissal ordered upon conclusion of disciplinary proceedings pursuant to art. 7 of the Law No. 300/1970. The judges of the Court of Cassation, in fact, returned to explore the heavy and controversial matter of linking the disputed fact with the letter starting the disciplinary proceeding to a different disciplinary assumption. On the matter, the Court reminded how said possibility is not excluded since it would exclusively be related to a different take on the same fact subject matter of the dispute, relating to which the employee had the opportunity to exercise his right of defence. On the contrary, it was also restated how the employer does not have the possibility to bring forth new and/or additional factual circumstances respect to those subject matter of the dispute, since this conduct would irremediably damage the right of the defence of the worker who would not have, in this manner, the possibility to present his own reasons related to said circumstances. In this manner, the Court of Cassation confirms its opinion according to which it is necessary full matching between the disputed facts and the ones at the root of the dismissal tied to the disciplinary proceedings.
