With a sentence, the Court of Appeal accepted the complaint of the Ministry of Education and rejected the application proposed by a teacher, concerning the challenge of disciplinary dismissal for having produced a false attestation relating to the diploma of a two-year specialization course for teachers of support in order to obtain a temporary post at the school. The Supreme Court is pronounced, rejecting the teacher’s appeal, with sentence 33232/22, of which we recall some passages.
The reform referred to in Legislative Decree 25 May 2017, n. 75 (so-called Madia law) has inserted in art. 55-bis of the Consolidated Law no. 165/2001 paragraph 9 quater which provides as follows: “For the teaching, educational and administrative, technical and auxiliary (ATA) staff at state schools and educational institutions, the disciplinary procedure for infringements for which the imposition of sanctions up to suspension from service with deprivation of salary for ten days is the responsibility of the manager of the structure in possession of managerial qualification and takes place in accordance with the provisions of this article. When the head of the structure does not have a managerial qualification or in any case for offenses punishable with more serious sanctions than those indicated in the first period, the disciplinary procedure takes place before the competent office for disciplinary proceedings “. So, after the Madia reform, the procedure applicable to the school is that of the aforementioned TU
On the PA’s obligation to verify the eligibility requirements of public employees
The appellant complains that the Court of Appeal did not take into account the PA’s obligation to check and verify the eligibility requirements of public employees and failed to rule on the complaint of illegality of dismissal for violation of the aforementioned obligation. In essence, he argues that for five years the school administration had never carried out the activities of control and verification of the eligibility requirements and that, therefore, the delay in ascertaining the falsity of the qualification could not then fall on the employee. The judges claim that the PA is not generally sanctioned with an obligation of control and verification under penalty of forfeiture. Therefore, the checks can be carried out at any time, even after years and if defects are ascertained these will still produce their effects.
On the terms of the disciplinary procedure
According to the jurisprudence of the Court, in terms of disciplinary proceedings, for the purposes of the expiry of the term for the contestation of the charge, only when the competent office has acquired a “notice of infringement” content such as to allow the initiation of the procedure through the dispute, which can be considered late only if the PA remains unjustifiably inert, despite being in possession of the necessary elements to proceed, so that the aforementioned term cannot run in the face of news which, due to its generic nature, does not allow the formulation of the blame and requires preliminary investigations aimed at acquiring the data necessary to substantiate the charge (thus, Cass. April 7, 2021, n. 9313; Cass. May 13, 2019, 12662; Cass. 11 September 2018, n. 22075 on full knowledge by the UPD, see also Cass. 7 May 2019, n. 11949 and the jurisprudence referred to therein).
It is also recalled, the Cassation specifies, that only the initial and final terms of the disciplinary proceedings are mandatorywhile the intra-procedural ones have an ordinatory character even though they must be applied in compliance with the principles of timeliness and immediacy (Cass. 14 June 2016, n. 12213; Cass. 14 December 2018, n. 32491; Cass.
9 March 2022, n. 7642).
What is meant by full knowledge of the facts for the purposes of initiating the disciplinary procedure?
The reference to “full knowledge of the facts deemed to be of disciplinary relevance” now contained in art. 55-bis of Legislative Decree no. 165/2001 (as replaced by Article 13, paragraph 1, letter d), of Legislative Decree no. 75/2015) confirms the aforementioned jurisprudential orientation and is worth underlining that the deadline for the initiation of the procedure may run as the report received by the UPD (office competent to manage disciplinary proceedings), through the head of the structure or in any other way, allows the procedure to be started and concerns a news, so to speak, “detailed”, on the basis of which it is possible to formulate a specific and not generic complaint, given that the lack of specificity of the act of indictment would undermine the entire proceeding. The judges specify that although the wording of the provision seems to refer “full knowledge” only to the acquisition of the news by means other than reporting by the manager of the structure, the latter can initiate the term for the dispute only if it is endowed with the specificity necessary to enable the administration to initiate the proceduresince the disciplinary initiative can be considered late only if the PA remains unjustifiably inert, despite being in possession of sufficient elements to proceed (thus Cass. 25 June 2018, no. 16706).
Therefore, it follows from this that generic and unsubstantiated information may not be suitable for determining the initiation of disciplinary proceedings. But this does not mean that the administration must remain inert, because if it becomes aware of potentially sanctionable facts, even if generic, it can initiate a request for clarification, and then start, based on the findings obtained, any disciplinary procedure that will have to be completed within 120 days.