The absence of prior notice of the charges in the case of disciplinary dismissal entails the worker’s right to reinstatement (Supreme Court, no. 28927/2024)
A worker contested the disciplinary dismissal imposed by her employer on the grounds that it had been executed without any prior notice of charges.
The Supreme Court ruled that “in matters of disciplinary dismissal, the complete lack of contestation of the infraction leads to the non-existence of the entire procedure and not just the non-compliance with the regulations that govern it.”
Indeed, according to the judges of legitimacy, the disciplinary compliant represents a necessary logical and legal prerequisite for evaluating the unlawfulness of the dismissal, with the consequence that, if it is lacking, the reinstatement protection applies.
That said, it should be noted that the correct initiation of a disciplinary procedure requires, in any case, a thorough examination of the facts as well as careful compliance with the procedures stipulated by law and by the applicable NCBA.
Valid is the dismissal sent to the address of the worker communicated during hiring, even if the worker has since changed it (Supreme Court, no. 28171/2024)
A worker contested the dismissal imposed by his employer, deeming it equivalent to an oral dismissal because it was sent to the address he provided during hiring, where he was no longer residing.
The Supreme Court confirmed the validity of the dismissal sent to the address communicated by the worker during hiring based on the fact that it is the worker’s obligation to promptly inform in writing of any subsequent changes in residence or domicile, responding not only to a specific obligation outlined in the NCBA but also to a principle of good faith in the employment relationship.
According to the Supreme Court, however, to establish the presumption of knowledge, it is not sufficient to provide proof of the dispatch of the registered letter alone, but it is also necessary to include, as in this case, “the notice of receipt or the certification of completed delivery, demonstrating the successful completion of the notification procedure” as indeed occurred in this case.
While it is the worker’s duty to communicate a change of residence, it is important to remember the necessity that any communication sent during the employment relationship is made using the methods prescribed by the NCBA and, in the absence of any provisions regarding this, in any case using methods suitable to certify the regularity of the sending.
The repeated delay of the worker justifies the dismissal (Supreme Court, no. 28929/2024)
A worker contested the dismissal imposed on him for repeatedly starting his work performance late.
In this case, the Supreme Court confirmed the legitimacy of the dismissal, also considering the recidivism of the employee, who had already received three conservative disciplinary sanctions for similar behaviors.
That said, the judges of legitimacy stated that the worker’s behavior appears symptomatic of his unreliability, as well as his total disinterest regarding previous conservative sanctions, which should have acted as a warning to behave differently in the future.
Given the above, it should be considered that the NCBA provides, by way of example, the behaviors that justify the disciplinary dismissal of a worker. That said, it is in any case not possible to exclude that a company may dismiss a worker for disciplinary reasons when the contested behavior—even if not expressly mentioned in the NCBA—is of such severity as to justify an expulsion sanction. To this end, it may also be useful to consider the implementation of company regulations to integrate the provisions of the NCBA.
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