THE COURT SHOULD NOT AUTOMATICALLY APPLY THE PENALTY OF DISMISSAL FROM THE COLLECTIVE AGREEMENT PROVIDED FOR A PARTICULAR OFFENCE - It 's an assessment on the adequacy in this case (Supreme Chamber Job No. 11846 of May 21, 2009, Pres Ianniruberto, Rel Ballets)
Vinicius B. Great Hotels Spa Fezia employee with the title of bartender was fired on the basis of two complaints: delayed submission of medical certification on the occasion of an absence due to illness, delayed closure, on another occasion, the accounts of the bar. He asked the court to set aside the dismissal of Florence for the excessiveness of the sentence. The company defended itself by stating that the penalty of dismissal was due to the delay in the medical certificate, in Articles 118 and 14 of the Negotiable tourism and that the late closure of accounts constituted an irregularity tax. The Court granted the request, ordering the reinstatement work and condemning the company to pay damages. On appeal the Court of Florence confirmed the decision, since it considered the penalty excessive, the result being that the worker had warned the company through his brother and then sent the certificate in order to prove indisputably the disease state. The company appealed to the Supreme Court, criticizing the decision under appeal for failure to state reasons and violation of the law.
The Supreme Court (section Paper No. 11846 of May 21, 2009, Pres Ianniruberto, Rel Ballets) dismissed the appeal. If the collective agreement, as a case of just cause for dismissal, failure or delay in submission of medical certificates in case of absence due to illness or non-performance of other specific contractual obligations by the employee - said the Court - the assessment on the legality of his dismissal was motivated by the occurrence of any of these assumptions, it can not be achieved automatically by the mere finding that the conduct of the worker integrates the case typed contract, but that it must always be linked with the concept of legal cause, taking into account the seriousness of the conduct of the worker in practice also in terms of subjective fault or intent. Consequently, the provision of the collective agreement regarding the delayed submission of the medical certificate must be evaluated in the sense that the penalty of dismissal for misconduct may properly be imposed only when there are still remaining grounds of justification (and, therefore, in terms of fault or fraud, the infringement is inexcusable) and, anyway, in accordance with "the principle of proportionality."
On the subject of disciplinary action - the Court made clear - the fundamental principle of proportionality of punishment to the seriousness the infringement must be respected both in the imposition of sanctions by the employer in exercising its disciplinary powers, both in the control of the legality and appropriateness of the penalty imposed, the court is called upon to do, to this connection, it is indispensable to the evaluation by the trial judge, hearing the proceedings regarding the legality of such measures, the existence or otherwise of the relationship of proportionality between the infringement of the worker and the penalty imposed on it, so the court must take into account not only the objective circumstances, but also of how subjective the conduct of the worker as they also affect the determination the seriousness of the transgression, and thus the legality of the sentence itself: with the conclusion that the appreciation of the merits of proportionality between offense and punishment escape censure in the assessment of legality if the trial court is supported by appropriate and logical reasoning .
The Supreme Court (section Paper No. 11846 of May 21, 2009, Pres Ianniruberto, Rel Ballets) dismissed the appeal. If the collective agreement, as a case of just cause for dismissal, failure or delay in submission of medical certificates in case of absence due to illness or non-performance of other specific contractual obligations by the employee - said the Court - the assessment on the legality of his dismissal was motivated by the occurrence of any of these assumptions, it can not be achieved automatically by the mere finding that the conduct of the worker integrates the case typed contract, but that it must always be linked with the concept of legal cause, taking into account the seriousness of the conduct of the worker in practice also in terms of subjective fault or intent. Consequently, the provision of the collective agreement regarding the delayed submission of the medical certificate must be evaluated in the sense that the penalty of dismissal for misconduct may properly be imposed only when there are still remaining grounds of justification (and, therefore, in terms of fault or fraud, the infringement is inexcusable) and, anyway, in accordance with "the principle of proportionality."
On the subject of disciplinary action - the Court made clear - the fundamental principle of proportionality of punishment to the seriousness the infringement must be respected both in the imposition of sanctions by the employer in exercising its disciplinary powers, both in the control of the legality and appropriateness of the penalty imposed, the court is called upon to do, to this connection, it is indispensable to the evaluation by the trial judge, hearing the proceedings regarding the legality of such measures, the existence or otherwise of the relationship of proportionality between the infringement of the worker and the penalty imposed on it, so the court must take into account not only the objective circumstances, but also of how subjective the conduct of the worker as they also affect the determination the seriousness of the transgression, and thus the legality of the sentence itself: with the conclusion that the appreciation of the merits of proportionality between offense and punishment escape censure in the assessment of legality if the trial court is supported by appropriate and logical reasoning .
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