Disciplinary dismissal: reinstatement for legally irrelevant conduct
The Court of Modena, with ruling no. 56 of January 9, 2026, addressed the issue of disciplinary dismissal under the "increasing protections" regime (Jobs Act), establishing a pivotal principle for employee protection. The judgment clarifies that reinstatement protection (tutela reintegratoria) applies not only when the alleged misconduct did not historically occur, but also when the contested fact lacks any disciplinary relevance. In this specific case, informal communications with clients, not barred by explicit company directives, were found insufficient to support a dismissal for cause. The judge identified a substantive defect, affirming that the absence of severity and the lack of proportionality between the sanction and the charge lead to the annulment of the dismissal and the restoration of the employment relationship. This decision underscores that the "non-existence of the material fact" must be interpreted in a legal sense, ensuring reinstatement whenever the conduct is harmless or falls outside the disciplinary scope defined by the National Collective Labor Agreement (CCNL).
In a recent landmark ruling, the Employment Section of the Court of Modena reaffirmed the central role of reinstatement protection (tutela reintegratoria) in cases of disciplinary dismissal based on conduct lacking any actual offensive impact. The decision clarifies that the "non-existence of the fact" is not limited to physical events that never occurred, but extends to behaviors that, while factually true, lack any disciplinary relevance. This interpretation provides substantial protection to employees against disproportionate dismissals or those lacking a proper regulatory basis.
The Case and the Legislative Framework
The dispute arose from a challenge to a dismissal served to a Sales Manager of a company operating in the ceramic sector. The employee was accused of independently contacting several foreign clients without involving the local agent, allegedly violating company directives. The company characterized this conduct as a grave breach of duty, sufficient to cause an irreparable breakdown of the relationship of trust (rapporto di fiducia).
The relevant legal framework is Article 3 of Legislative Decree No. 23/2015 (commonly known as the "Jobs Act"), which governs protections in cases of unfair dismissal. While the general rule provides for monetary indemnity, Paragraph 2 reserves reinstatement in the workplace for instances involving the "non-existence of the contested material fact." The central question addressed by the Court concerned the scope of this concept regarding acts that historically occurred but are not subject to sanction.
Disciplinary Relevance and Substantive Defects
The Court analyzed whether the employee’s conduct—sending messages for simple information requests—could actually constitute a disciplinary offense. Testimony revealed that there was no written company policy prohibiting such contacts, but merely an informal operational practice.
According to the Judge, when conduct does not meet the threshold of relevance or constitutes merely preparatory activity, it results in a substantive defect that affects the very legitimacy of the termination. The ruling cites the consolidated orientation of the Supreme Court, which states that the non-existence of the material fact includes cases where the act, although it occurred, is "legally irrelevant" for disciplinary purposes. In such instances, the employer fails to provide proof of a valid cause for dismissal, rendering the expulsion radically void.
The Court’s Decision and the Legal Principle
With Ruling No. 56/2026, the Court of Modena annulled the dismissal and ordered the immediate reinstatement of the employee. The Judge specified that reinstatement protection must be applied not only when the fact did not occur, but also when the conduct is entirely unsuitable to justify an expulsive sanction according to the categories of collective bargaining agreements or the principles of proportionality between the sanction and the misconduct.
Specifically, the Court highlighted that:
- The burden of proving the legitimacy of the dismissal and the proportionality of the sanction rests entirely with the employer.
- Evidence of the non-existence of the fact may be acquired indirectly or deductively, provided it ensures the certainty of the "historical fact."
- The violation of simple, informal practices cannot be equated with grave insubordination.
Operational Implications for Employees
This ruling represents an important precedent for employees subject to Jobs Act protections. It confirms that the judiciary has the power to assess the disciplinary nature of the contested fact and that reinstatement is not a residual remedy limited to mere material errors in the contestation. If the alleged behavior is harmless or lacks legal significance, the employee is entitled to return to their position and receive a compensatory indemnity for the period of exclusion, within the 12-month limit prescribed by law.
