Italy: Dismissals on Grounds of Recidivism Requires New Misconduct: The Supreme Court Confirms that the Repetition of Conduct Already Punished with a Conservative Measure Is Not Sufficient

Conduct that has already been punished by a conservative sanction cannot give rise to further disciplinary action unless it is accompanied by new conduct of a disciplinary nature to be qualified as “recidivism”. This was the ruling of the Supreme Court, Labor Matters, in order no. 14077 of 13 May 2026, emphasizing the importance of compliance with the ne bis in idem principle also in employment lawsuits.

The case concerned the challenge against a dismissal on grounds of subjective justified reason, based on a recidivism as referred to in Article 35(I) of the National Collective Bargaining Agreement for port workers. This clause justifies dismissal where there has been repeated conduct referred to any of the breaches provided for in Article 34 of the said collective agreement, setting forth that, where there have been at least three suspensions applied in the year preceding the new conduct charged, a subsequent recidivism may constitute grounds for dismissal.

In the case at hand, the employer challenged the employee of having submitted, to justify absence from work, a medical certificate lacking the necessary indication of the address where the employee could be available during sick leave; the employee was also charged with specific recidivism, having previously committed other breaches punished by way of five prior conservative disciplinary sanctions.

The Supreme Court, in light of Article 35(I) of the National Collective Bargaining Agreement, identifies the two elements necessary to constitute dismissal for repeated misconduct. The first item is the essential commission of a new disciplinary offence falling within the categories set out in Article 34 of the collective agreement, constituting the immediate fact grounding the charge; the second element required, instead, is the existence of at least three disciplinary measures of suspension applied in the year preceding the new offence in question.

Recidivism, therefore, is not an independent offence, but being a “relapse”, which is a “new commission” of a further disciplinarily relevant act, considers the number and nature of previous breaches and their connection with the new offence.

In this interpretative analysis, the Supreme Court highlights how the Court of Appeal, on the other hand, made a logical leap, having ascertained only the second constitutive element, considering it sufficient, for the purposes of establishing the case of recidivism, the mere presence of three suspensions over the course of the year, thereby deeming the assessment of the new conduct in question to be irrelevant, whereas it is in fact necessary for the recognition of recidivism.

However, according to the Supreme Court, this clearly constitutes a breach of the ne bis in idem principle, since the dismissal was based exclusively on facts that had already been punished with conservative sanctions (suspensions), in respect of which the employer had by then exhausted its disciplinary powers. Therefore, those conducts could not have any further disciplinary relevance unless they were accompanied by new conduct of a disciplinary nature.

The Supreme Court upheld the ground of appeal and quashed the appealed judgment, remitting the case for the necessary assessment of the latest disciplinary charge, which is essential for the purposes of establishing recidivism.

Key Action Points for Human Resources and In-House Counsel

• According to the Supreme Court, in the case of dismissal for disciplinary reasons based on recidivism, the mere repetition of conduct previously punished by way of a conservative disciplinary measure is not sufficient to ground employment termination.
• Since recidivism is a “new commission” of an additional disciplinarily relevant act, the assessment of the new conduct is indispensable for the purposes of the recognition of recidivism.