The ruling of the Supreme Court of 23 June 2023, n. 18070, states two principles: a) the dismissal ordered in violation of the terms established by the collective agreements gives rise to the mere weak compensation protection provided for by the sixth paragraph of the art. 18 of the Workers’ Statute. In this sense, the Supreme Court confirms its previous orientation (see, most recently, Cass., 21 April 2023, n. 10802), which seems to do justice to the previous principle of law according to which the terms established by collective agreements would be of real forfeiture pursuant to 2965 of the Civil Code. and, therefore, their violation would consume the employer’s power of withdrawal; b) the dismissal, however, ordered in violation of the “general and indeterminate notion of timeliness of the complaint”, cannot be canceled when the fact exists; however, in this case, the long time elapsed between knowledge of the infringement and dismissal legitimizes the application of the strong indemnity protection referred to in the fifth paragraph of the art. 18 of the Workers’ Statute. This is because the lack of timeliness “may lead the worker to believe that the employer wants to postpone the dismissal considering his fault not serious or in any case not deserving of the maximum sanction”. This conclusion might make sense if the employee were able to demonstrate that the employer already knew every detail of his conduct and remained inactive for a long time. In all other cases and in the absence of such proof, the conclusion ends up financially rewarding (up to 24 months’ salary) the worker who, having committed an offense which is difficult to ascertain within large companies, has benefited from the time required for checks complex without ever thinking, aware of the seriousness of his behavior, of a hypothetical leniency from the employer.
Dismissal between general tardiness and contractual tardiness.
- Post published:October 13, 2023