With its judgment No. 13266 of 28 May 2018, the Court of Cassation has declared the lawfulness of a disciplinary dismissal served on an employee for having used the company computer during working time for non-working purposes. In the case at issue, the employer had commenced a retrospective investigation – following the reporting of the technical director, who had caught the employee using the computer for leisure activities -, from which it emerged that the employee often played “with the company computer” (Free Cell game). The employee challenged the served dismissal in court, by stating that the employee had carried out controls using a universal password that requested prior trade union agreement, failing which, the Labour Inspectorate’s authorisation (article 4 of Law No. 300/70). By upholding the conclusions of the Court of Appeal having territorial jurisdiction, the judges of the Court of Cassation have stated that the application of the procedural guarantees under article 4 of the Workers’ Statute is admitted in the event that the remote controls are aimed at the precise compliance with the employment and not also when they (as in the case at issue) are aimed at ascertaining the carrying out of unlawful behaviours of employees harming the company’s assets and image. In this respect, the Court of Cassation has laid stress on the fact that the application of such procedural guarantees derives from a balancing, which is not always easy to carry out, between the needs for the protection of the company’s interests and assets, related to the freedom of economic initiative, and the protection that cannot be renounced of the employee’s dignity and confidentiality, with a mitigation that cannot disregard the circumstances of the specific case. And, within this scope, as also stated by the European Court of Human Rights, the fair balance between the opposing interests must be made in compliance with the principles of reasonableness, proportionality and of the protection of the employee’s right to the respect of private life, through the employer’s prior disclosure of the possible control of his/her communications, also through the Internet. In short, the case in which the employer has carried out checks aimed at ascertaining unlawful behaviours harming assets unrelated to the employment falls beyond the scope of application of the Workers’ Statute rule, moreover, in case of controls carried out ex post. The above since said controls are carried out after the implementation of the behaviour charged to the employee, such as to disregard the pure and mere supervision over the performance of his/her employment.
