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22.122021

Public sector disciplinary proceedings and independence from criminal judgments (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, November 2021)

in Labour

In its ruling no. 25901 of 23 September 2021, the Court of Cassation dealt with the case of a dismissal of a female civil servant after disciplinary proceedings were reopened.

The case involved a female municipal employee who was dismissed on disciplinary grounds for having “repeatedly slandered and damaged the honour and dignity of the Municipal Police Chief and other superiors. This was based unfounded accusations contained in a complaint for sexual violence lodged against the Chief and a superior and for assault and threats against another superior, which was subsequently dismissed by the local court preliminary investigation judge.”

Given these circumstances, the employee was subjected to disciplinary dismissal, under art. 3, paragraph 7, letter F) of the Local government sector NCLA, for cases of “recidivism in the two-year period […] of aggressive, hostile and denigrating acts and behaviour and forms of moral violence or psychological persecution towards a colleague to cause them damage in the work environment or exclude them from the work environment.”

This sanction, challenged in court, was first annulled by the Court of Teramo on the grounds that a previous dismissal had already been imposed for the same facts and was still sub iudice, with mixed results. The local Court of Appeal confirmed the annulment, not considering that the provisions of art. 55-ter, paragraph 3, Legislative Decree 165/2001 could be applied to this case.

This provision states in detail that “if the disciplinary proceedings end with the case’s dismissal and criminal proceedings end with an irrevocable conviction, the office responsible for disciplinary proceedings shall reopen the disciplinary proceedings to adjust the final decisions to the outcome of the criminal proceedings. Disciplinary proceedings can be reopened if the irrevocable conviction shows that the fact chargeable to the employee in the disciplinary proceedings entails the dismissal while another sanction was applied instead.”

The Municipality, having become aware of the fact that, because of the employee’s unfounded complaints, a criminal trial for slander had taken place, which had ended with a conviction against her, imposed a new dismissal cause under art. 3, paragraph 8, letter. E) of the NCLA, concerning the case of a “final conviction for an offence which, although not directly related to the employment relationship, does not allow continuation because of its seriousness.”

The second dismissal, once challenged, was also annulled by the Court of Teramo, with a sentence upheld on Appeal. In the meantime, the original ruling annulling the first dismissal was firstly overturned by the Court of Appeal of L’Aquila, whose ruling was revoked by the Supreme Court, confirming the rejection of the appeal against the first dismissal.

The Supreme Court observed that it is necessary to exclude that the two disciplinary proceedings relate to different offences. “The two disciplinary provisions have specialising elements: the first applies the sanction of dismissal if the conduct constitutes a repetition of other similar offensive or disparaging acts; the second disciplinary case, has as its special feature the element of a final criminal conviction. This does not mean that the core of the conduct […] is the same and consists of denigrating behaviour towards superiors.”

The Court of Cassation stated that the conduct is always the same and the second dismissal cannot be said to relate to a different fact.

The issue arises of whether it is possible to reopen the disciplinary proceedings if a criminal conviction occurs which was not considered in the previous disciplinary procedure conducted regardless of the pending criminal case, for an act prosecuted and potentially constituting an offence.

The Court observed that the disciplinary procedure “maintains its autonomy and may be affected by the criminal judgement if the disciplinary action is not yet defined or only if […] the finality of the criminal investigation is placed […] as a basis for the obligations to reopen it.”

It is pointed out that, in the field of employment relationships, it is a well-established principle that disciplinary power cannot be reiterated, for the same fact once it has already been exercised by applying a sanction. This is the case even if the first sanction is less than the sanction subsequently found to be applicable based on additional circumstances.

Even though disciplinary proceedings were independent from criminal proceedings, the legislator provided for cases where the criminal case differed from the determinations made in the disciplinary proceedings but were still bound to have effects although formally closed.

This is the case, in favour of the accused, if the criminal proceedings end with an irrevocable acquittal which recognises that the there is no case to answer against the employee, or the fact does not constitute a criminal offence, or the employee did not commit the offence. In such cases, the disciplinary proceedings must be reopened to adjust their outcome to the judicial findings.

Starting a second disciplinary proceeding cannot be considered admissible, for the same fact, except in the cases expressly allowed by Art. 55-ter of Legislative Decree no. 165/2001.

Reopening disciplinary proceedings which have been closed with a precautionary sanction, for facts that lead to dismissal which have been ascertained in criminal proceedings, is expressly regulated because of its divergence, to protect the public interest, from the general principle of the “termination” of disciplinary power.

Given the above, the Court determined that the Municipality in question “could not have opened a new disciplinary procedure, for the same facts, because the dismissal was (provisionally) annulled by the first instance ruling. It could not have done so even if that annulment became final, because that case did not allow for possible further disciplinary power for the same fact. At that point, the judgement on the existing employment and the inability of the disciplinary action to affect it, prevailed.”