The Court of Cassation, with judgement No. 10280/2018, handled once again a case of dismissal ordered due to disparaging statements against the employer and its representatives through Facebook.
In the case in question, the judges of the court (Court of Forlì and Court of Appeal of Bologna) had already deemed legitimate the dismissal ordered to an employee for having expressed, via social networks, dislike for his job and the company property, using vulgar language.
The Court highlighted that the bond of trust at the basis of the employment relationship had been irremediably damaged because, a subjective point of view, the plaintiff’s conduct showed a behaviour characterized by gross negligence and, from an objective point of view, the dissemination of a defamatory message via Facebook could be defamation due to potential to reach an indeterminate number of people.
This ruling of the Court of Cassation reaffirms the trend in case law in favour of the lawfulness of dismissals ordered in those cases of misuse of social networks.
However, it is important to point out that, even in light of several previous cases, breach of the bond of trust cannot be automatically associated simply to a few critical words; instead it is necessary to perform a careful analysis of the circumstances regarding the manner and the place (including a virtual one) in which these words are expressed so as to understand the effective scope and assess whether a dismissal should be deemed lawful.

Read here the original version of this article published on Il Quotidiano del Lavoro.

Pursuant to article 54, Legislative Decree no. 81/2015, employers are entitled to hire individuals already parties to project collaboration contracts and individuals registered for VAT purposes with whom self-employment relationships occurred provided that: (i) the individuals sign a settlement agreement in front of unions or labour authorities; (ii) in the twelve months following the hiring, employers do not terminate the employment relationship, except for disciplinary reasons. The open-ended employment involves the extinguishing of administrative, social security contributions and tax penalties related to the erroneous qualification of the relationship, without prejudice to the infringements ascertained as a result of inspections carried out before the hiring date.

The Court of Cassation, with its judgement No. 6893 of 20 March 2018, declared the dismissal for cause notified to an employee to be lawful, as a result of having carried out another working activity during the days of leave for serious family reasons. In the case at issue, following the investigation ordered by the employer, it emerged that the employee – “precisely complying with the timetable” – went to a real estate company’s office, of which the employee was manager and technical director, during the days in which the employee benefitted from the above-mentioned leave. Above all and by making cross-reference to one of its own stances, the Court considered that the investigative controls ordered by the employer had been lawful, since justified by the suspicion of the “perpetration of breaches of the law” by the employee, which cannot be traced back to the mere breach of the employment obligation and carried out outside working times. The Court then laid stress on the objective seriousness of the behaviour, since the employee had used the leave (granted “for serious and documented family reasons”) for purposes unrelated thereto and, moreover, forbidden (pursuant to the provisions under article 4 of Law No. 53/2000 “During such period the employee kept the respective job (…) and cannot carry out any type of working activity”). In this respect the Court, apart from anything else, made cross-reference to one of its stances based on which “the use of one’s leave to carry out a different working activity amounts to abuse due to diversion of the distinctive purpose of the right, fit to amount to just cause for dismissal”. In the Court’s opinion, it must be added that any such behaviour is detrimental to the employer’s good faith, which sees itself unfairly deprived of the employee’s work. Finally, the Court highlighted that it is not necessary to post up the disciplinary code beforehand upon any breach (as in the case at issue) of law provisions and, in any event, of fundamental duties of the employee, which may be recognised as such without it being necessary to foresee them specifically.

With its judgement No. 8407 lodged on 5 April 2018, the Court of Cassation declared the disciplinary dismissal notified to a female employee unlawful. On two occasions, she failed to stop another employee, who was a subordinate, from stealing pellet bags from the employer’s outlet, just limiting herself to warn her managers on both occasions. In the case at issue and during the first episode, the employee had warned her own head of sector – who, however, did not give her any instructions whatsoever as to the measures to be taken – and, on the occasion of the second episode, she had warned the branch’s assistant. According to the company, instead of reporting the facts to her own managers, the employee should have verbally objected the perpetration of the criminal offence to her own subordinate, in compliance with the obligations of fairness, good faith and loyalty towards the employer. By upholding the decision of the Court of Appeal having territorial jurisdiction, the Court of Cassation stated the following principle of law: “in so far as dismissal for disciplinary reasons is concerned, even if the rules and regulations under the collective bargaining agreements foresee a certain behaviour as just cause or justified subjective grounds for withdrawal, the judge vested with the right to challenge the lawfulness of the dismissal must in any event check the actual seriousness of the behaviour with which the employee has been charged” (Cass. No. 16095/2013; Cass. No. 21633/2013). The Court of Cassation also clarified that “(…) the infliction of the highest disciplinary penalty is solely justified upon a considerable breach of the contractual obligations, or even such as not to allow the continuation, even temporary, of the employment”. By abiding by these principles, the Court of Cassation deemed that the employee had acted correctly, therefore declaring the employer’s withdrawal from the employment to be unlawful. Consequently, prior to expediting any dismissal, it is always necessary to check whether the seriousness of the behaviour – even if sanctioned by the collective bargaining agreement – is such as to justify the withdrawal.