by the lawyer. Wild Cheats.
According to paragraph 2 of the art. 7 of law 300/1970, the employer, in order to adopt a valid disciplinary measure against an employee, is required not only to contest the charge in writing, but also to listen to him orally in his defense where the accused worker make an express request. According to the following paragraph 3, during the oral hearing, the worker may be assisted by a representative of the trade union association to which he joins or mandates. The oral hearing, with or without the assistance of a trade union representative, constitutes a fundamental right of the worker, as it is an expression and direct derivation of his right to defence. Therefore, if the employee requests to be heard orally and the employer does not fulfill the relevant obligation, the sanction imposed may be cancelled. The mandatory nature of the obligation of oral hearing requires the employer to respect it even if the employee has already submitted his justifications in writing without requesting to be heard orally as well. In fact, the employer is precluded from any union regarding the necessity, or opportunity, of the requested defensive integration, considering that the relevant evaluation is left and delegated exclusively to the worker.
In particular, according to the most recent jurisprudential direction, the worker must be granted the possibility of full explication of the right of defense and, therefore, also the possibility, after having presented written justifications without formulating any request for an oral hearing, to develop "a change of heart ” regarding the greater defensive adequacy of the (also) oral representation of the exculpatory elements (Court of Cassation n. 19846/2020). Therefore, if the worker expressly requests it, the employer is required to hear him orally in his defense since the exculpations provided in writing consume his right of defense only when the written declaration shows the waiver of being heard or when the request appears ambiguous or lacking unambiguity (Court of Cassation no. 16421/2019). The right to an oral hearing even after written justifications does not conflict with paragraph 4 of the art. 7 cit., according to which "disciplinary measures more serious than a verbal reprimand cannot be applied before five days have passed from the written notification of the fact which gave rise to it", and this is because the expiry of the indicated term does not determine the forfeiture of the worker's right to request an oral hearing in his defense. Furthermore, if the employee promptly requests the postponement of the requested oral hearing due to a health reason (proven by appropriate medical certification), the employer must necessarily postpone the hearing until the worker's illness ceases. Ultimately, it must be considered that the prior oral hearing of the worker, where expressly requested by the latter, represents an essential procedural prerequisite, which cannot be omitted by the employer, if not invalidating the validity of both the entire disciplinary procedure initiated and of the measure that may follow.
