NOTE TO JUDGEMENT: Cass. Civ., sec. Work, February 10, 2009, No 6569
just cause for dismissal - Phrases offensive to the employer - denial
In a preliminary test, the Court focuses on the requirements for the existence of a just cause for dismissal. In particular, according to the judges of the legality of the existence of a just cause for dismissal must put in practice the character of "serious denial of the essential elements of the employment relationship and, specifically, of the trustee."
Therefore, it should first assess the severity of the allegations made against the employee, in relation to the objective and subjective scope of the same, the circumstances in which they were committed to the intensity and intentional element, the other, the proportionality between those facts and the penalty imposed, if the injury element establishing trust on which the cooperation of the employee is in practice to justify or not the maximum disciplinary action (in the same way, ex plurimis, Cass. nn. 20221/2007 , 24349/2006, 19270/2006, 12001/2003).
In this case, the Court held that the terms "disrespectful" (but not threatening), directed by employees in the administration of the company should be considered in the overall context in which they were uttered.
It was in this case, a context marked by an altercation occurred between the two, which is understandable and instinctive emotional reaction to blame the worker received. All this applies in this case to exclude the severity contractually required to be able to make application of punitive sanctions.
******
(omitted)
THE SUPREME COURT OF CASSAZIONE
Section
job (...)
OF THE PROCESS
23-10.2002 With the appeal before the Labour Court, Naples, (.. ) challenging his dismissal from intimatogli (..) on 18.6.2002, under the previous letter of objection, 29.5.2002, by which he was charged that:
- on 15.5.2002, during the course of his duties of auxiliary service representative dishes, had loaded the truck too lunchbox, so in this way had led to the destruction of crockery transported therein, necessary to the three-storey hospital, having thus rejected the company available, more 'ribaditagli times, according to which the carriage was to be a plan for a time;
- the day 16.5.2002, had again overload the trolley, thus causing the breakage of dishes, glasses and cups, on the occasion we needed for lunch and transported the patients from the second and fifth floor, so further contravention to this provision in the company;
- on 28.5.2002 at all times during the course of their duties, had pushed the trolley with violence against the cage containing the oxygen bottles and then, following the invitation received by the company (...)
to pay more 'attention in the use, correct the truck, in the presence of several co-workers, had spoken to the claims administrator phrases insulting and threatening (such as' Who the fuck you think you are, if you're a man come out, you do not live more 'quiet'). The applicant
deduced that, for episodes 15 and 16 May, all occurred as the truck, laden with dishes, had surrendered, while the events of May 28 he was only intent on pushing the cart is empty from which it had lost control, so as to push the cage in which they were allocated cylinders of oxygen, and, on that occasion, the director of the company had railed against him and attacked him physically, causing him an injury to the upper, as shown on the relative Cardarelli report released from the hospital at which he had gone to end of tour of duty, said that was not enacted any provision concerning the manner of loading trucks for a single floor at a time and that the tipping of the carts was the result of their poor state of repair, except, also, have never remember the words spoken in relation to the administrator of the company.
Radicatosi the heard and the strength of the employer, the judge hearing the case, held the disproportion between the objections upheld and the penalty imposed, declared the illegality of the contested dismissal, providing for reintegration into the workplace and for damages as did the obligatory retention of so-called real protection.
The Court of Appeal of Naples, with a decision dated 22.3 - 17.5.2005, rejected the appeal lodged by (....) Arguments in support of decisum, for what is relevant, as follows:
- had not emerged evidence of any aggression or threat posed by (....) episode, 28.5.2002;
- there was no evidence of serious breaches of employee dismissal of the evidence, lacking any concrete evidence to comfort dell'ipotizzata insubordination, since the animated discussion took place between the (..) and the administrator was brought back in a reasonable time and reduced already suitably reconstructed and appreciated by the chief justice could not even ruled out a challenge and a subsequent scuffle triggered the same (... ..) taking into account that if none of the witnesses had been reporting in order to attack even denounced by the worker, was able to report as to the precise mode of origin of the dispute; phrases disrespectful, but not threatening, attributed to (....) enforced by two of the various texts were properly resized and framed in a context of emotional and instinctive reaction, and were "likely" attributable to the fact that he had been severely reprimanded and "maybe" even physically assaulted, appearing "totally implausible" that (...) we could be facing the wrong way and in the absence of a clear trigger towards the top, to come with the clear and conscious intention to rebel at the same and to challenge his authority within the company hierarchy, and thus the fact that he uttered the phrase "who the fuck you think you are 'or' Who do you think of be 'in the specific context and status of documents, could be explained only as a reaction to excessive criticism and rude and could not integrate the details of an actual insubordination, in turn is relevant hopelessly on the relationship of trust;
- the requirements of the substantial default and the existence of the particular gravity of the act, required by CCNL industry in order to make way for the penalty of expulsion in case of insubordination or negligent execution of the instructions issued were missing and with reference to broken crockery on 15 and 16 May 2002, is in the following order all'alterco May 28;
- in accordance with art. 7, last paragraph of Law No. 300/70, could not be taken into account for any purposes of disciplinary sanctions previously imposed after two years after their implementation.
against the aforesaid ruling of the Court of Appeal Naples (... ..) has appealed to the Supreme Court based on memory and illustrated with ten reasons.
Intimacy (....) Has made a counterclaim, illustrated with memory.
GROUNDS
The Territorial Court considered the lack of any concrete evidence to comfort dell'ipotizzata insubordination and that it considered that the sentences uttered by the (....) At the administrator could only be explained as a reaction to an excessive and rude reprimand, followed by assault, presumably as harshly reprimanded and maybe even physically assaulted; claims about the applicant that (....) had not tried, as was his burden, the facts supporting his behavior, as a reaction to an alleged employer's unlawful conduct, paradoxically, also contested the ruling had initially found that there had been no aggression carried out by the administrator and then justify the behavior of the worker on the basis of a presumed verbal aggression and perhaps even to their physical damage.
The third reason, the applicant alleges infringement and false application of art. 2119 cc. And art. Law No 3 604/1966 and faulty reasoning in relation to art. 360, paragraph 1, nos. 3 and 5, the CPC, for the territorial court found that the expressions given by (....) At the CEO, as noted, did not constitute insubordination particularly serious (and therefore significant failure), integrating it with the cause or the subjective justification for dismissal.
the Territorial Court erred in finding that the CEO (... ..) is not entitled to attend hearings of witnesses and enforcement that his presence had caused "a reverential fear conditioning called in the testimony of the texts'
the Territorial Court considered by virtue of the medical certificate issued on 28.5.2002 Cardarelli Hospital in Naples, that (....) nell'alterco have been injured by an administrator.
The sixth reason, the applicant alleges infringement and false application of Articles. 7 Law No 300/70 and 2697 cc. And lack of reasoning, in relation to art. 360 paragraph 1, Nos 3 and 5, the Code, for having incorrectly considered the territorial court, referring to episodes of 15 and 16 May 2002, had not been proved that the negligence of the worker, as the sole causal factor for accidents, otherwise attributable also to structural defects of the trolleys provided.
the Territorial Court found that the episodes of 15 and 16 May 2002 could become relevant in the disciplinary proceedings in question only if concretanti 'significant breach' and if a "particularly serious." In the eighth
why the applicant alleges infringement and false application of Articles. 1362 and 1363 cc. Interpretation art. 30 CCNL for employees of private nursing homes, 13.10.1999, in relation to art. 360, paragraph 1, no 3 Code, for the territorial court erred in finding that the breach of contract in addition to other significant non-compliance, may not acquire any relevance in the disciplinary proceedings would eventually lead to a dismissal unless concretanti 'significant breach' and if not of "particularly serious."
The ninth reason the applicant alleges infringement and false application of Articles. 1362 and 1363 cc. In the interpretation of Article. 33 CCNL for employees of private nursing homes, 13.10.1999, as well as lack of reasoning in relation to art. 360, paragraph 1, nos. 3 and 5, Code of Civil Procedure, to have the court territorial failed to assess that under the said Article. Negotiable 33, incurs the dismissal the employee who engages in conduct with a suspension of sanctions where it has already received in the two previous layoffs and pay. By the tenth
why the applicant alleges infringement and false application of Articles. Law No 7 300/70, Law No. 2119 and 3 cc 604/66, and faulty reasoning in relation to art. 360 subsection 1, nos. 3 and 5 of the Code, for not having considered the territorial court, for the appreciation of the overall behavior of (....) For the legality of the dismissal, the previous disciplinary action by the same sustained, although not claims for the relapse and even sentenced to more than two years preceding the last protest.
2. The first, second, third and fifth grounds of appeal, as are closely related, should be considered together.
Look at the college, according to the shared approach of this Court to determine specifically the existence of a just cause for dismissal, which must assume the character of a serious negation of the essential elements of the employment relationship and in particular that the trustee, should be assessed on the one hand the seriousness of the allegations made against the employee, in relation to the objective and subjective scope of the same, the circumstances in which they were committed to the intensity and intentional element, the other, the proportionality between those facts and the penalty imposed, if the injury element establishing trust on which the cooperation of the employee is in practice to justify or not the maximum disciplinary penalty (see ex plurimis, Cass . nn. 20221/2007, 24349/2006, 19270/2006, 12001/2003).
In this case, the territorial court, with appreciation of the fact unimpeachable legitimacy here, considered on the basis of witness statements commonly referred to, that the terms "disrespectful" (but not threatening) addressed by the (....) Administrator (....), were assessed in the overall context in which they were uttered characterized from an altercation occurred between the two, and considering them with a reasonable valuation effect of reaction "emotional and instinctive 'of the worker received the reprimands, thereby excluding the possibility of ascrivibilità a real and insubordination, however, the severity contractually required in order to make the application of punitive sanctions.
The further suggestion that "perhaps" (....) May have been physically assaulted by the administrator does not perform because they clearly expressed as doubtful, a crucial role in the evaluation of merit made by the Territorial Court, so that can not be regarded a contradiction with the clearly identified while absence of evidence of the attack denounced by the worker. Similarly
basically irrelevant in the broader context of motivation to adopt, then the suggestion that only the employee had reported injuries, so that even under this specific profile should be excluded the reported habit of contradiction in the contested decision, which presupposes' have been underlying the decision essentially conflicting reasons, such as to cancel each other and not allow the identification of ratio decidendi, namely the identification of legal proceedings logical place to base the decision (see, former plurimis, Cass. n . 11936/2003).
The grounds of appeal can not examine therefore be accepted.
2. The fourth ground of appeal is inadmissible for lack of interest, since the considerations of the Territorial Court on a "probable awe conditioner called in the testimony of the texts are all still employed by the respondent" and that the depositions were "sometimes" made in the presence of (....) tabulas that was not for the purpose, does not have resulted in the affirmation out any of the unreliability of witness statements collected and, therefore, had no substantive impact on the decision taken.
3. The sixth ground of appeal is unfounded, as the claim could not be considered adequate proof of negligence negligence of the worker, as the sole causal factor for accidents which occurred on 15 and 16 May, because "otherwise attributable to structural defects of the trucks also provided" one side is purely strengthened ('bargain') than the previously stated absence of significant non-compliance of the required conditions and the particular gravity of the act, the other must be reconnected to the call made to the previously acquired evidence on this point, so that they resolve complaints made by the applicant in the request for a review, inadmissible here, for these findings proceedings.
4. According to the shared approach of this court regarding dismissal just cause or justified subjective reason, when the defendant is alleged several incidents relevant to the employee on disciplinary, the trial court must consider not atomistic, reducing them to individual cases referred to by contract terms, but must be assembled together in order to ascertain whether their relevance total is likely to undermine confidence that the employer must be able to put in disdente (see, former plurimis, Cass. nn. 6454/2006, 6668/2004, 13536/2002).
The territorial court, referring to an arrest, however, misinterpreted this court (Court of Cassation No. 12678/1992), has conversely limited to exclude the possibility that each of the three objections made - in itself considered - The requirements to justify the use of expulsion penalty, but not to an overall evaluation of the three episodes, drawing the necessary conclusions in terms of their overall ability to configure any significant breach, and then irreversibly affect the item trustee.
The seventh ground of appeal thus appears well founded.
5. The eighth and ninth ground of appeal is inadmissible, not having the applicant, in accordance with the principle of self-sufficiency of the appeal, given the content of collective bargaining rules that you regretted the misinterpretation or failure to account.
6. Under the guidance of the Court shared the principle the immutability of the notification of the accusation leveled against the employee under disciplinary art. 7 Workers Statute precludes the employer to dismiss for other reasons other than those claims, but does not prohibit consideration of the undisputed facts, and also collocatisi distance of more than two years of withdrawal, such a fact confirmed the significance of other places charge basis dismissal, in order to assess the overall severity of defaults under the psychological profile of the worker and the proportionality of the corresponding sanction or not the entrepreneur, not ostando this assessment, the provision in the last paragraph of Article. Law No 7 300/70 (see, former plurimis, Cass. nn. 7734/2003, 9811/1998, 1925/1998, 6523/1996, 5093/1995).
The territorial court has departed from that of interpretation, as already stated nell'istorico of litigation, which, under Article. 7, last paragraph of Law No. 300/70, could not be taken into account for any purposes of disciplinary sanctions previously imposed after two years after their application and, thereby omitting any assessment, even if such a fact confirmed the significance and seriousness of the objections, in respect of previous disciplinary attachments from the employer.
The tenth ground of appeal is therefore unfounded.
7. Based on the above it must be recognized the merits of the seventh and tenth ground of appeal, but the rest must be rejected.
The decision under appeal must be quashed with respect to the grounds given, with reference to re-examine the judge indicated in the device, which will judge by conforming to the above mentioned principles of law and will also be on the costs of appeal. PQM
The Court welcomes the seventh and tenth ground of appeal, rejects the rest of the sentence contested case in connection with the grounds given for the expenses and returns to the court of Appeal of Naples in a different formation.
Decided in Rome February 10, 2009.
FILED ON THE
March 18, 2009
just cause for dismissal - Phrases offensive to the employer - denial
In a preliminary test, the Court focuses on the requirements for the existence of a just cause for dismissal. In particular, according to the judges of the legality of the existence of a just cause for dismissal must put in practice the character of "serious denial of the essential elements of the employment relationship and, specifically, of the trustee."
Therefore, it should first assess the severity of the allegations made against the employee, in relation to the objective and subjective scope of the same, the circumstances in which they were committed to the intensity and intentional element, the other, the proportionality between those facts and the penalty imposed, if the injury element establishing trust on which the cooperation of the employee is in practice to justify or not the maximum disciplinary action (in the same way, ex plurimis, Cass. nn. 20221/2007 , 24349/2006, 19270/2006, 12001/2003).
In this case, the Court held that the terms "disrespectful" (but not threatening), directed by employees in the administration of the company should be considered in the overall context in which they were uttered.
It was in this case, a context marked by an altercation occurred between the two, which is understandable and instinctive emotional reaction to blame the worker received. All this applies in this case to exclude the severity contractually required to be able to make application of punitive sanctions.
******
(omitted)
THE SUPREME COURT OF CASSAZIONE
Section
job (...)
OF THE PROCESS
23-10.2002 With the appeal before the Labour Court, Naples, (.. ) challenging his dismissal from intimatogli (..) on 18.6.2002, under the previous letter of objection, 29.5.2002, by which he was charged that:
- on 15.5.2002, during the course of his duties of auxiliary service representative dishes, had loaded the truck too lunchbox, so in this way had led to the destruction of crockery transported therein, necessary to the three-storey hospital, having thus rejected the company available, more 'ribaditagli times, according to which the carriage was to be a plan for a time;
- the day 16.5.2002, had again overload the trolley, thus causing the breakage of dishes, glasses and cups, on the occasion we needed for lunch and transported the patients from the second and fifth floor, so further contravention to this provision in the company;
- on 28.5.2002 at all times during the course of their duties, had pushed the trolley with violence against the cage containing the oxygen bottles and then, following the invitation received by the company (...)
to pay more 'attention in the use, correct the truck, in the presence of several co-workers, had spoken to the claims administrator phrases insulting and threatening (such as' Who the fuck you think you are, if you're a man come out, you do not live more 'quiet'). The applicant
deduced that, for episodes 15 and 16 May, all occurred as the truck, laden with dishes, had surrendered, while the events of May 28 he was only intent on pushing the cart is empty from which it had lost control, so as to push the cage in which they were allocated cylinders of oxygen, and, on that occasion, the director of the company had railed against him and attacked him physically, causing him an injury to the upper, as shown on the relative Cardarelli report released from the hospital at which he had gone to end of tour of duty, said that was not enacted any provision concerning the manner of loading trucks for a single floor at a time and that the tipping of the carts was the result of their poor state of repair, except, also, have never remember the words spoken in relation to the administrator of the company.
Radicatosi the heard and the strength of the employer, the judge hearing the case, held the disproportion between the objections upheld and the penalty imposed, declared the illegality of the contested dismissal, providing for reintegration into the workplace and for damages as did the obligatory retention of so-called real protection.
The Court of Appeal of Naples, with a decision dated 22.3 - 17.5.2005, rejected the appeal lodged by (....) Arguments in support of decisum, for what is relevant, as follows:
- had not emerged evidence of any aggression or threat posed by (....) episode, 28.5.2002;
- there was no evidence of serious breaches of employee dismissal of the evidence, lacking any concrete evidence to comfort dell'ipotizzata insubordination, since the animated discussion took place between the (..) and the administrator was brought back in a reasonable time and reduced already suitably reconstructed and appreciated by the chief justice could not even ruled out a challenge and a subsequent scuffle triggered the same (... ..) taking into account that if none of the witnesses had been reporting in order to attack even denounced by the worker, was able to report as to the precise mode of origin of the dispute; phrases disrespectful, but not threatening, attributed to (....) enforced by two of the various texts were properly resized and framed in a context of emotional and instinctive reaction, and were "likely" attributable to the fact that he had been severely reprimanded and "maybe" even physically assaulted, appearing "totally implausible" that (...) we could be facing the wrong way and in the absence of a clear trigger towards the top, to come with the clear and conscious intention to rebel at the same and to challenge his authority within the company hierarchy, and thus the fact that he uttered the phrase "who the fuck you think you are 'or' Who do you think of be 'in the specific context and status of documents, could be explained only as a reaction to excessive criticism and rude and could not integrate the details of an actual insubordination, in turn is relevant hopelessly on the relationship of trust;
- the requirements of the substantial default and the existence of the particular gravity of the act, required by CCNL industry in order to make way for the penalty of expulsion in case of insubordination or negligent execution of the instructions issued were missing and with reference to broken crockery on 15 and 16 May 2002, is in the following order all'alterco May 28;
- in accordance with art. 7, last paragraph of Law No. 300/70, could not be taken into account for any purposes of disciplinary sanctions previously imposed after two years after their implementation.
against the aforesaid ruling of the Court of Appeal Naples (... ..) has appealed to the Supreme Court based on memory and illustrated with ten reasons.
Intimacy (....) Has made a counterclaim, illustrated with memory.
GROUNDS
The Territorial Court considered the lack of any concrete evidence to comfort dell'ipotizzata insubordination and that it considered that the sentences uttered by the (....) At the administrator could only be explained as a reaction to an excessive and rude reprimand, followed by assault, presumably as harshly reprimanded and maybe even physically assaulted; claims about the applicant that (....) had not tried, as was his burden, the facts supporting his behavior, as a reaction to an alleged employer's unlawful conduct, paradoxically, also contested the ruling had initially found that there had been no aggression carried out by the administrator and then justify the behavior of the worker on the basis of a presumed verbal aggression and perhaps even to their physical damage.
The third reason, the applicant alleges infringement and false application of art. 2119 cc. And art. Law No 3 604/1966 and faulty reasoning in relation to art. 360, paragraph 1, nos. 3 and 5, the CPC, for the territorial court found that the expressions given by (....) At the CEO, as noted, did not constitute insubordination particularly serious (and therefore significant failure), integrating it with the cause or the subjective justification for dismissal.
the Territorial Court erred in finding that the CEO (... ..) is not entitled to attend hearings of witnesses and enforcement that his presence had caused "a reverential fear conditioning called in the testimony of the texts'
the Territorial Court considered by virtue of the medical certificate issued on 28.5.2002 Cardarelli Hospital in Naples, that (....) nell'alterco have been injured by an administrator.
The sixth reason, the applicant alleges infringement and false application of Articles. 7 Law No 300/70 and 2697 cc. And lack of reasoning, in relation to art. 360 paragraph 1, Nos 3 and 5, the Code, for having incorrectly considered the territorial court, referring to episodes of 15 and 16 May 2002, had not been proved that the negligence of the worker, as the sole causal factor for accidents, otherwise attributable also to structural defects of the trolleys provided.
the Territorial Court found that the episodes of 15 and 16 May 2002 could become relevant in the disciplinary proceedings in question only if concretanti 'significant breach' and if a "particularly serious." In the eighth
why the applicant alleges infringement and false application of Articles. 1362 and 1363 cc. Interpretation art. 30 CCNL for employees of private nursing homes, 13.10.1999, in relation to art. 360, paragraph 1, no 3 Code, for the territorial court erred in finding that the breach of contract in addition to other significant non-compliance, may not acquire any relevance in the disciplinary proceedings would eventually lead to a dismissal unless concretanti 'significant breach' and if not of "particularly serious."
The ninth reason the applicant alleges infringement and false application of Articles. 1362 and 1363 cc. In the interpretation of Article. 33 CCNL for employees of private nursing homes, 13.10.1999, as well as lack of reasoning in relation to art. 360, paragraph 1, nos. 3 and 5, Code of Civil Procedure, to have the court territorial failed to assess that under the said Article. Negotiable 33, incurs the dismissal the employee who engages in conduct with a suspension of sanctions where it has already received in the two previous layoffs and pay. By the tenth
why the applicant alleges infringement and false application of Articles. Law No 7 300/70, Law No. 2119 and 3 cc 604/66, and faulty reasoning in relation to art. 360 subsection 1, nos. 3 and 5 of the Code, for not having considered the territorial court, for the appreciation of the overall behavior of (....) For the legality of the dismissal, the previous disciplinary action by the same sustained, although not claims for the relapse and even sentenced to more than two years preceding the last protest.
2. The first, second, third and fifth grounds of appeal, as are closely related, should be considered together.
Look at the college, according to the shared approach of this Court to determine specifically the existence of a just cause for dismissal, which must assume the character of a serious negation of the essential elements of the employment relationship and in particular that the trustee, should be assessed on the one hand the seriousness of the allegations made against the employee, in relation to the objective and subjective scope of the same, the circumstances in which they were committed to the intensity and intentional element, the other, the proportionality between those facts and the penalty imposed, if the injury element establishing trust on which the cooperation of the employee is in practice to justify or not the maximum disciplinary penalty (see ex plurimis, Cass . nn. 20221/2007, 24349/2006, 19270/2006, 12001/2003).
In this case, the territorial court, with appreciation of the fact unimpeachable legitimacy here, considered on the basis of witness statements commonly referred to, that the terms "disrespectful" (but not threatening) addressed by the (....) Administrator (....), were assessed in the overall context in which they were uttered characterized from an altercation occurred between the two, and considering them with a reasonable valuation effect of reaction "emotional and instinctive 'of the worker received the reprimands, thereby excluding the possibility of ascrivibilità a real and insubordination, however, the severity contractually required in order to make the application of punitive sanctions.
The further suggestion that "perhaps" (....) May have been physically assaulted by the administrator does not perform because they clearly expressed as doubtful, a crucial role in the evaluation of merit made by the Territorial Court, so that can not be regarded a contradiction with the clearly identified while absence of evidence of the attack denounced by the worker. Similarly
basically irrelevant in the broader context of motivation to adopt, then the suggestion that only the employee had reported injuries, so that even under this specific profile should be excluded the reported habit of contradiction in the contested decision, which presupposes' have been underlying the decision essentially conflicting reasons, such as to cancel each other and not allow the identification of ratio decidendi, namely the identification of legal proceedings logical place to base the decision (see, former plurimis, Cass. n . 11936/2003).
The grounds of appeal can not examine therefore be accepted.
2. The fourth ground of appeal is inadmissible for lack of interest, since the considerations of the Territorial Court on a "probable awe conditioner called in the testimony of the texts are all still employed by the respondent" and that the depositions were "sometimes" made in the presence of (....) tabulas that was not for the purpose, does not have resulted in the affirmation out any of the unreliability of witness statements collected and, therefore, had no substantive impact on the decision taken.
3. The sixth ground of appeal is unfounded, as the claim could not be considered adequate proof of negligence negligence of the worker, as the sole causal factor for accidents which occurred on 15 and 16 May, because "otherwise attributable to structural defects of the trucks also provided" one side is purely strengthened ('bargain') than the previously stated absence of significant non-compliance of the required conditions and the particular gravity of the act, the other must be reconnected to the call made to the previously acquired evidence on this point, so that they resolve complaints made by the applicant in the request for a review, inadmissible here, for these findings proceedings.
4. According to the shared approach of this court regarding dismissal just cause or justified subjective reason, when the defendant is alleged several incidents relevant to the employee on disciplinary, the trial court must consider not atomistic, reducing them to individual cases referred to by contract terms, but must be assembled together in order to ascertain whether their relevance total is likely to undermine confidence that the employer must be able to put in disdente (see, former plurimis, Cass. nn. 6454/2006, 6668/2004, 13536/2002).
The territorial court, referring to an arrest, however, misinterpreted this court (Court of Cassation No. 12678/1992), has conversely limited to exclude the possibility that each of the three objections made - in itself considered - The requirements to justify the use of expulsion penalty, but not to an overall evaluation of the three episodes, drawing the necessary conclusions in terms of their overall ability to configure any significant breach, and then irreversibly affect the item trustee.
The seventh ground of appeal thus appears well founded.
5. The eighth and ninth ground of appeal is inadmissible, not having the applicant, in accordance with the principle of self-sufficiency of the appeal, given the content of collective bargaining rules that you regretted the misinterpretation or failure to account.
6. Under the guidance of the Court shared the principle the immutability of the notification of the accusation leveled against the employee under disciplinary art. 7 Workers Statute precludes the employer to dismiss for other reasons other than those claims, but does not prohibit consideration of the undisputed facts, and also collocatisi distance of more than two years of withdrawal, such a fact confirmed the significance of other places charge basis dismissal, in order to assess the overall severity of defaults under the psychological profile of the worker and the proportionality of the corresponding sanction or not the entrepreneur, not ostando this assessment, the provision in the last paragraph of Article. Law No 7 300/70 (see, former plurimis, Cass. nn. 7734/2003, 9811/1998, 1925/1998, 6523/1996, 5093/1995).
The territorial court has departed from that of interpretation, as already stated nell'istorico of litigation, which, under Article. 7, last paragraph of Law No. 300/70, could not be taken into account for any purposes of disciplinary sanctions previously imposed after two years after their application and, thereby omitting any assessment, even if such a fact confirmed the significance and seriousness of the objections, in respect of previous disciplinary attachments from the employer.
The tenth ground of appeal is therefore unfounded.
7. Based on the above it must be recognized the merits of the seventh and tenth ground of appeal, but the rest must be rejected.
The decision under appeal must be quashed with respect to the grounds given, with reference to re-examine the judge indicated in the device, which will judge by conforming to the above mentioned principles of law and will also be on the costs of appeal. PQM
The Court welcomes the seventh and tenth ground of appeal, rejects the rest of the sentence contested case in connection with the grounds given for the expenses and returns to the court of Appeal of Naples in a different formation.
Decided in Rome February 10, 2009.
FILED ON THE
March 18, 2009
