PUBLISHED BY Arlati Ghislandi
TAG:
Disciplinary dismissal ordered after the term established by the collective labour agreement – Reintegration of the worker
18
Sep
2018

The disciplinary dismissal ordered after the term established by the contractual rules is illegitimate due to the inexistence of the disputed fact, and involves application of the regime of real protection (reintegration of worker in the workplace and payment of compensation).

 

Text: With sentence no. 21569 of 3 September 2018, the Supreme Court upheld the worker’s appeal, judging unlawful the dismissal ordered after the term of 10 days established by the collective labour agreement for the purposes of imposing the disciplinary measure of expulsion.

 

As anticipated, the contractual rules applied to this specific case establish that disciplinary dismissal must be imposed within 10 days of the deadline for presenting counterclaims by the worker concerned. Otherwise, the justifications must be considered accepted. This is to prevent reasonable reliance on the worker.

 

Considering the above, dismissal made after the date specified in the contract granted to the employer for adopting an exclusionary disciplinary measure, necessarily implies the acceptance of the justifications of the worker and the illegitimacy of dismissal due to the inexistence of the fact that, since the justifications of the worker concerned are considered accepted, the essential element of just cause is lost.

 

Therefore, in this specific case, ‘the charge made against the worker, has, in fact, fallen as a result of the implicit admission by the employer of the inexistence of the illicit conduct that made the disputed fact no longer configurable as a sanctionable offence’.

 

It follows from this assumption that dismissal ordered after the contractual term is subject to the rules of real protection referred to in article 18, paragraph 4 of Law no. 300 of 20 May 1970, according to which the judge annuls the dismissal and orders the employer i) to reintegrate the worker in the workplace, ii) to pay an indemnity commensurate with the last total de facto remuneration from the day of dismissal until the day of the actual reintegration (in any case, the amount of the indemnity may not exceed twelve months of the total de facto remuneration) and iii) to pay the social security contributions from the day of dismissal until the day of the actual reintegration.