Dismissal unlawful if company regulations are not posted (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, November 2022)

30 November 2022

With Order No 24722 of 11 August 2022, the Italian Court of Cassation rejected the appeal against a decision of the Rome Court of Appeal, which had held the dismissal on disciplinary grounds of a worker to be ineffective without the prior posting of the disciplinary code.

The disputed facts concern the dismissal of a worker who had been employed by an employer since 1993. Since 2010, the employee had been exclusively responsible for threading copper tubes inside the plastic diaphragms constituting a supporting structure called ‘castelletto’. 

From 2011 to 2013, the worker had received various disciplinary complaints for poor performance and disciplinary measures to suspend service and pay. On 7 November 2013, he had been dismissed with notice following a disciplinary allegation of ‘deliberate slowness in carrying out the task assigned to him’, together with the reoccurrence of the allegation.

The court, both in the summary stage and in the subsequent opposition stage, had rejected the claim, having ascertained the worker’s performance (50% civil disability but judged fit for the task assigned to him) to be 50% or less than the average performance of the department where he was assigned.

The appeal judges, therefore, pointed out that ‘the disciplinary dispute had as its object the breach, not of the worker’s fundamental duties or of the so-called “minimum ethical standards”’, which must be presumed to be known by all, ‘but of a specific technical productivity rule’, linked to a specific average standard set by the company on the basis of the organisation of its production and the average achieved by other employees with identical duties. In view of these characteristics, therefore, the employer should have first informed the workers of the disciplinary relevance of the breach of the aforementioned productivity rule by posting the disciplinary code in a place accessible to all.

The company, in its defence, having received the same indication at the previous instances of the proceedings under Article 7, paragraph 1, of Italian Law No 300/1970, i.e. not having posted the company regulations, requested the admission of witness evidence, supplemental to submission of its counter-arguments, but in both judgments the defendant’s objection was not upheld.

The judges of last instance, in their order, considered the judgment of the previous judge to be legitimate and ordered the applicant to pay the costs of the proceedings.

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