The 55 crafty ones from the Loreto Mare hospital in Naples, caught in the fragrance of a crime with overwhelming evidence gathered by Public Prosecutor Ida Frongillo and under house arrest (out of 94 suspects), in fact cannot be fired but only suspended. This is explained by the lawyer Luca Failla, labor lawyer and co-founder of Lablaw, the law firm specializing in labor law. It is no coincidence that 50 of them - according to what they learned from the press - paradoxically obtained permission from the judge to continue working, being able to move only on the way home and work. “We are at the typical paradox of Italian labor law – affirms the lawyer Failla – in which civil servants caught in the fragrance of a crime following an investigation by the Public Prosecutor's Office are still in their place. This situation, although motivated by the pressing need to guarantee a fundamental service such as the hospital service that immediate and generalized removal could have compromised, nevertheless highlights an enormous distortion of our right, as newspaper reports periodically point out ( see the recent case of the Saronno hospital), which favor the clever to the detriment of those who simply do their duty.”
It is true that the art. 55 of Legislative Decree 165/01 (the so-called Riforma Brunetta) authorizes the dismissal for serious cases of abuse such as these in which one no longer has to wait for the final sentence but can proceed with the dismissal even with a non-definitive sentence, but the practice of the Public Administrations is in the opposite direction, namely that of suspending the employees involved and the disciplinary procedure itself until the final criminal sentence which will only come many years later (if the plea bargaining does not intervene first with all due respect to the sentence). All of this as both the collective agreements of the sector still allow today and, for cases of "particular complexity", the same article 55 Ter Legislative Decree 165/01 which also the recent Madia decrees have decided not to modify as it would have been desirable. With the consequence, even today, that in the presence of criminal proceedings and perhaps with the arrest of the suspects, pace of the Madia reform and legal certainty, the PA will never proceed with the dismissal of the suspects, preferring to wait as has always happened in past, the definitive outcome of the criminal trial. It is no coincidence that only 3% of disciplinary actions ended with a dismissal out of a total of 8259 proceedings in 2015.
"This conclusion also seems forced taking into account that during the criminal investigation phase the employer PA - continues the lawyer - does not even have access to the information and investigations of the criminal proceeding (investigations, probative evidence, video recordings, wiretaps or other) essential to be able to start the disciplinary procedure (disputing the charges) and then impose a regular dismissal, often learning about the facts and perhaps the furnishings of one's employees only from the press!
Basically, this is the lawyer's opinion, even after the recent Madia Reform – in the text approved last week by the Council of Ministers – the problem which remains current has not been remedied in any way.
“On the contrary, the following should have been done: a) on the one hand, the option for the PA to suspend the disciplinary procedure and wait for the outcome of the criminal procedure to be canceled (as provided for by article 55 Ter of the Consolidated Law on Public Employment); b) allow the PA access to investigative data of the criminal proceeding (investigations, reports, video recordings, interceptions or other); c) facilitate a direct relationship for the PA with the Public Prosecutor aimed at the timely acquisition of information regarding its employees subject to criminal investigation; d) introduce the obligation for employees under investigation to promptly make available to the PA all the information deriving from the criminal proceeding (e.g. the precautionary custody order or the notice of guarantee) which employees almost always refuse to even provide to the employer even invoking privacy; e) it should have been explicitly foreseen the repeal of all the rules (in the best favor for the suspects) contained in the collective agreements of the sector in contrast with the binding regulation contained in the art. 55 et seq. TU of the Public Employment. Not having done so, beyond the proclamations ("The cunning ones must be fired!) the PA will remain in the current situation of immobility and regulatory uncertainty in which it has always found itself".
Although the recent Madia decrees (soon to be published) will allow for dismissal in the future even if only in the presence of the first degree conviction sentence (art. 55 Ter ....) no PA will risk dismissing employees in the absence of a definitive conviction, too there is a high risk of an acquittal then on appeal or annulment in Cassation with the risk of having the employees reinstated years later (with responsibility perhaps before the Court of Auditors ..). Better then to wait for the "criminal justice" to take its (slow) course with all due respect to the crafty ones who will at most be suspended but will continue to be paid as foreseen by almost all the sector collective agreements signed by the trade unions.
“The situation becomes even more paradoxical in the case of a plea deal where eventually granted. As known from the most widespread jurisprudence, a possible plea bargaining sentence in criminal proceedings pursuant to art. 444 cpp does not constitute a real sentence of conviction. Consequently, it is almost impossible that any settlement of the sentence, where granted, could have relevance as proof of just cause for dismissal with the immediate effect of reinstatement in service, as has often happened in the halls of the Labor Courts in recent years where the Judges they almost always reinstated the workers involved. In practice, the plea agreement blocks the dismissal ".
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Who is Luca Failla – Lawyer eg, employment lawyer adjunct professor at the LUM Jean Monnet University of Casamassima (Bari). Lawyer of the Year for Labor Law Litigation (LegalCommunity 2013). He is a founding partner of LABLAW, the first Italian law firm for professionals with a widespread distribution in the territory specialized in labor law and trade union relations.
