Article 18 of the Italian Workers’ Charter (Statuto dei Lavoratori), which regulates the consequences against wrongful dismissals, does not expressly govern the case when time passes between the employer becoming aware of the act committed by a worker and the sending of the letter containing the disciplinary complaint regarding such act, as well as the case when the employer has not complied with the period provided for by the collective agreement within which the disciplinary measure must be taken.
Such “lateness” has always been generally perceived as the employer’s intention to waive any disciplinary measures, or as acquiescence or tolerance, which expressly excludes the existence of a “just cause” (as provided for in Article 2119 of the Italian Civil Code, which is a fact “that does not permit the continuation of the relationship, even on a temporary basis”).
The above-mentioned provision has therefore been subject to divergent interpretations in the jurisprudence which, on one hand, has recognized the right of the (wrongfully dismissed) worker to be reinstated in the place of employment and to be paid a reimbursement and on the other hand, the sole reimbursement has been recognized.
In particular, judgments which applied the compensatory measure qualified late disciplinary complaints as a procedural errors (thus applying the 6th paragraph of the above-mentioned Article 18) or as dismissals unjustified by a subjective reason or without any just cause (thus applying the 5th paragraph of the same Article).
In the first scenario, the Judge, by declaring that dismissals are ineffective due to a procedural error, shall order to the employer to pay an indemnity ranging from 6 to 12 months’ salary without the reinstatement of the dismissed worker.
In the second scenario, with the ascertainment of the groundlessness of a just cause or a justified reason, the Judge shall order to the employer to pay an indemnity ranging from 12 to 24 months’ salary, also in this case, without the reinstatement of the dismissed worker.
On the other hand, other Court’s rulings deemed to apply to late disciplinary complaints the most serious sanction of reinstatement of dismissed workers and (as a consequence) ordered to the employer to pay compensation equal to the salary that the employee would have received from the date of dismissal until the date of the court ruling and up to 12 months, plus the relevant welfare contribution costs (as required by paragraph 4th of the above-mentioned Article 18).
The dispute has been referred to the United Divisions of the Italian Court of Cassation, which had arisen in previous judgments, by excluding that late disciplinary complaints shall involve the reinstatement of the of any dismissed employee.
This judgment observes that the legislator’s intention is to be interpreted as willingness to consider the sole reimbursement (from 12 to 24 months’ salary) in favor of unfairly dismissed employees as a general role. Under this approach, such “lateness” would not be referable to any case of invalidity laid down by paragraph 4th of the above-mentioned Article 18 (which would lead, as stated above, to the reinstatement of the dismissed worker) and therefore the reinstatement would apply only if the dismissal is found to be based on discriminatory reasons or parental issues, or null or void for other reasons (e.g., it is found to be retaliatory) or if the reasons for the dismissal are found to be merely non-existent.
With reference to the payment of the lower indemnity between 6 and 12 months’ salary, the aforementioned judgment states that it applies only in case the employer fails to comply with any term established by the collective agreement.
Finally, the Italian Supreme Court of Cassation specifies that such principle of timeliness is infringed only in case of “considerable and not justified delay” of the disciplinary complaint, to be evaluated on a case-by-case basis (for example, when it is based on necessities of complex investigations, as well as when the organizational structure is such as to delay the acknowledgment of the event by the bodies in charge).