Court of Cassation, Order no. 36/2022
The assessment of the proportionality or adequacy of the sanction for the breach committed is based on an evaluation of the seriousness of the breach ascribed to the employee in relation to the specific relationship and all the circumstances of the case, taking into account the fact that such a breach must be assessed in an accentuated sense with respect to the general rule of "not insignificant importance" under Article 1455 of the Civil Code, so that the imposition of the maximum disciplinary sanction is justified only in the presence of a significant breach of contractual obligations (Law No. 604 of 1966, Article 3) or even such as not to allow the continuation, even provisional, of the relationship (Article 2119 of the Civil Code).
Court of Cassation, no. 36/2022.
In this case, an employee was dismissed for just cause for having temporarily left the workplace without authorisation and without providing justification and, in any case, for recidivism in misconduct that had resulted in two suspensions from work and pay in the previous year, as provided for by the applicable NCBA.
The Court of Appeal, as the Tribunal of First Instance, rejected the appeal brought by the employee, confirming the lawfulness of the dismissal on the grounds that, on the one hand, the provision in the CCNL allowing dismissal in the event of repeated misconduct giving rise to two suspensions was applicable. On the other hand, the Court of Appeal "qualified as serious the conduct alleged against the employee for having left his workstation for about an hour, without authorization and therefore arbitrarily, leaving his colleague in difficulty for the completion of operations that required the presence of two people and thus causing a delay in the start of the production line and a drop in production compared to the expected quantity".
With this order, the Court of Cassation dismisses the appeal and confirms the decision of the Court of Appeal.
The Supreme Court remarks that"the just cause for dismissal, as a fact that does not allow the continuation, even temporary, of the relationship is a notion that the law, in order to adjust the rules to the reality to be regulated, articulated and changing over time, configured with a provision (attributable to the type of so-called general clauses) of limited content, outlining a generic form that requires to be specified in the interpretation, through the exploitation of both external factors relating to the general conscience, and principles that the same provision tacitly refers to".
According to the order"the judgement of proportionality or adequacy of the penalty for the offence committed is based on the assessment of the seriousness of the breach attributed to the employee in relation to the specific relationship and all the circumstances of the case" and "such breach must be assessed in an accentuated sense with respect to the general rule of "not insignificant importance" under Article 1455 of the Civil Code, so that the imposition of the maximum disciplinary sanction is justified only in the presence of a significant breach of contractual obligations (Law no. 604 of 1966, art. 3) or even such as not to allow the continuation, even provisional, of the relationship".
The sentence challenged, concludes the Supreme Court, followed the principles referred to above and reasonably assessed the seriousness of the offence, both with regard to the removal from the workplace and to the repeat offence.