Late Disciplinary Notice? Reintegration of the worker.

The present case involved an employee who was late to work for more than two months, believing he had been demoted. The Court of Romein the first instance, awarded damages to the latter, but only paid an amount of one euro. compensation. Indeed, the Court of Appeal also ordered the reintegration.

Lastly came the Civil Cassation stating, in judgment 1693/2013, that "the time elapsing between the notice of disciplinary dismissal and the ascertainment of the fact contested against the employee may indicate the absence of a requirement of the case provided for by Article 2119 of the Civil Code (incompatibility of the fact contested with the continuation of the employment relationship). (incompatibility of the contested fact with the continuation of the employment relationship), since the delay in contestation may indicate the lack of interest in the exercise of the potential right to dismiss; under a second profile, the timeliness of the contestation allows the worker a more precise recollection of the facts and enables him to prepare a more effective defence in relation to the contested charges: with the consequence that the lack of a timely contestation may result in a breach of the procedural guarantees established by Law No. 300 of 1970, Article 7".

La failure to contest was, therefore, considered by the Supreme Court as a "tolerated behaviour'. Indeed, the aforementioned Article 7 of the Workers' Statute explicitly states that: "the employer may not take any disciplinary measure against the employee without having first notified him of the charge and without having heard his defence".