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16 December 2015
The Supreme Court recently issued a decision regarding disciplinary proceedings during which the employer had not made the documents that informed the letter of reprimand available to the employee under review.(1) The court found that the dismissal was illegitimate, as an employer must allow an employee that is subject to disciplinary review to examine the documents that informed the letter of reprimand if it is deemed fundamental for his or her defence.
The case concerned a dismissal for just cause following a disciplinary proceeding in which the employee (who was on sick leave) had not been heard in person despite a formal request. The employee had asked in writing for permission to examine the documents on which the reprimand was based and to be heard orally. The oral hearing did not take place due to the employee's continued illness and the employer proceeded with the dismissal, considering that the employee's written defence was complete and the request for a hearing was a delay tactic.
The trial court found that the dismissal was illegitimate due to the delay between the issue of the letters of reprimand and the dismissal. The last letter of reprimand had been sent approximately five months before the dismissal. The court of appeal confirmed the decision and underlined that an employee's illness does not exonerate an employer from its obligation to orally hear an employee.
The Supreme Court confirmed the decision, further underlining that illness does not exonerate an employer from its obligation to orally hear an employee. The hearing was deemed necessary in this case, owing to the employee's need to examine the documents on which the complex letters of reprimand had been based.
In line with previous case law, the Supreme Court clarified that although Article 7 of Law 300/70 does not oblige an employer to make the documents on which the letter of reprimand was based available to an employee voluntarily, it must provide them if requested by an employee for whom their examination is fundamental to defend himself or herself properly from accusation.
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