With Order No 7029, of 9 March 2023, the Italian Court of Cassation, reversing the conclusions reached by the Court of Appeal of Bologna, deemed legitimate since justified by a just cause the dismissal of a worker who, derisorily, had turned against a colleague telling her in dialectal form ‘but why did you get pregnant too?’, ‘but why aren’t you a lesbian’, ‘and how did you get pregnant?’.
The facts of the case
The situation in question had occurred at a bus stop, where the colleague was waiting to take up service as a driver, in the presence of other people, while both the fired worker and the person they spoke to were in uniform and therefore recognizable as employees of the company employer.
The employee, fired by the company, challenged the dismissal and obtained, on appeal, partial acceptance of his appeal. Specifically, the appeal judges believed that the episode contested against the employee, albeit undisputed from a factual point of view, should be relegated to ‘substantially uncivilized’ conduct punishable at the most with a conservative sanction (suspension from pay and service) .
The order of the Italian Court of Cassation
The Italian Court of Cassation, in overturning the decision of the appeal judges, reiterates that, according to established jurisprudence, the ‘just cause’ of dismissal pursuanttoArticle 2119 of the Italian Civil Code integrates a general clause, which requires to be actualised by the interpreter through appreciation of external factors relating to the general awareness and the principles tacitly referred to by the law, therefore through declinations that have a legal nature and whose non-application can be deduced before the Italian Court of Cassation as a violation of the law.
According to the Judges of the Court of Cassation, the assessment made by the trial judge in attributing the disputed conduct of the employee to mere “uncivilised” behaviour would not conform to the values present in the social context and to the principles of the legal system, referring, in fact, to a behaviour contrary only to the rules of good manners and the formal aspects of civil life, where the content of the expressions used and the further factual circumstances in which the behaviour of the employee must be contextualized are instead in contrast with much more meaningful values now rooted in the general awareness and are expression of general principles of the legal system (Articles 2, 3, 4 and 35 of the Italian Constitution).
General principles which, the Court continues, find precise declination in the legal system through the provision of anti-discrimination regulations in various ways aimed at preventing or repressing forms of discrimination linked to gender, among which Italian Legislative Decree no. 198/2006 (Italian Code of equal opportunities between men and women) whose Article 26, first paragraph, also identifies harassment as discrimination, namely those unwanted behaviours, carried out for reasons connected to gender, with the purpose or effect of violate the dignity of a female or male worker or create an intimidating, hostile, degrading, humiliating or offensive environment.
In the light of the above considerations, the Court quashed the decision of the Court of Appeal for the review of the overall case in order to verify the existence of just cause for the dismissal notified to the concerned worker in the light of the correct reference value scale reconstructed by the Court itself in the order in question.
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