The United Chambers of the Court of Cassation – with the decision n. 30985 – have resolved a jurisprudential conflict concerning the identification of applicable protection in case of late notification of the disciplinary dismissal for justified reason.

Before of this ruling, there were in fact two conflicting jurisprudential orientations. The first, did not deem the disciplinary dismissal ineffective in the absence of timely notification, with consequent application of the indemnity protection; the second, instead, considered the immediacy of notification as a constituent element of the disciplinary dismissal, the absence of which allowed – pursuant to the Article 18 of the Workers’ Statute – the reintegrating protection.  

The United Chambers of the Court of Cassation – with the decision n. 30985 - have therefore clarified that, in case of late notification of the disciplinary offence placed on reason of the dismissal, will be applied the indemnity protection under Article 18 paragraph 5 of the Workers’ Statute, if being ascertained the existence of the disciplinary offence charged to the worker. Therefore, the judge can declare the employment relationship terminated with effect from the date of dismissal and order to the employer to pay – in favor of the worker – an all-inclusive indemnity determined between a minimum of twelve and a maximum of twenty-four months of the last global salary, taking into account both the worker’s seniority and the number of employee, as well as the size of the economic activity, the behaviour and conditions of the parties.

With regard the disciplinary dismissal, the immediacy of notification doesn’t consist in – according to the Court – in compliance with the procedural rules of protest of the disciplinary charge under Article 7 Law n. 300/1970, but in making easier for the worker the excercise of the right of defense and to prevent that the employer delay could convince the worker to consider the fact of incrimination as non-existent or in any case not serious.

With the consequence that, in the case exists the disciplinary offence placed on reason of the dismissal, but not having the employer – in compliance with the principles of correctness and good faith – contested immediately the disciplinary offence, will apply the Article 18 paragraph 5 of the Workers’ Statute as amended by Law n. 92/2012.

Otherwise, in the further cases provided for by the Article 18 of the Workers’ Statute, will apply the full or attenuated real protection, while, if there is a deadline for the notification of the disciplinary offence, the relative violation would be attracted in the field of application of the Article 18 paragraph 6.

With this ruling, the United Chambers of the Court of Cassation have expressed an important principle of law, such that, the judicial declaration of termination of the disciplinary dismissal resulting from the verification of a considerable and unjustified delay in contesting the disciplinary offence, falling ratione materiae into the discipline of Article 18 Law n. 300/1970, as amended by paragraph 42 of Article 1 Law n. 92/2012, involves the application of the indemnity ex Article 18 paragraph 5.