The Supreme Court of Cassation, Work Section, with sentence 13534 of 20 May 2019, declared a dismissal for just cause of an employee who had reacted to being slapped by a colleague, to be lawful.
Facts and previous judgments
A sales employee, reacting to being slapped in the face by a colleague became involved in a fight with that colleague in front of the customers. The company, which was their employer, had thus started disciplinary proceedings resulting in dismissal for just cause.
The Court of Sassari, where the dismissed employee first appeared, considered the withdrawal to be unlawful, as the employee had been defending herself after having been slapped in the face.
The Court of Appeal in Cagliari reversed the initial decision, declaring legitimate the de quo withdrawal, citing that the employee, knowing the violent and aggressive nature of their colleague, had deliberately provoked them in front other colleagues and customers making them behave in a certain way.
The decision of the Supreme Court of Cassation
Regarding the decision of the Court of Appeal, the woman appealed to the Supreme Court of Cassation citing violation of Article 2219 of the Italian Civil Code and Article 229 of the National Collective Labour Agreement for Employees in the Tertiary Sector.
In the worker’s view, the ‘litigious quarrel followed by de facto working arrangements, including between employees, which are detrimental to or disruptive to the normal exercise of the activity‘ provided for in Article 229 of the Staff Regulations cannot lead to dismissal where, as in the present case, the conduct is justified by a reaction to the aggression of others.
On this point, the Supreme Court of Cassation stated “collective agreement does not unfavourably obligate the employee“. Even when the worker’s behaviour corresponds contractually to a case justifying disciplinary dismissal, ” a concrete assessment must be made (…) by the judge, in merit of the real extent and gravity of the worker’s behaviour, also from the subjective point of view of guilt or malice” (see Supreme Court of Cassation no. 8826/2017; Supreme Court of Cassation no. 10842/2016 among others)
According to the Court, “the list of cases for just cause dismissal contained in collective agreements is purely illustrative, so that it does not preclude an independent assessment by the judge in merit of a serious breach (…) to terminate the relationship of trust between employer and employee” (Supreme Court of Cassation no. 2830/2016; Supreme Court of Cassation no. 4060/2011 etc.).
On the contrary, “collective agreements obligate the employee in a favourable way“. Where the provisions of the collective agreement are more favourable to the worker – in the sense that the conduct alleged against her is included among the infringements punishable by a protective measure – the court cannot consider the withdrawal to be lawful. This is because we must “give precedence to the assessment of lesser gravity of that particular conduct as a lower grade disciplinary offence“
In the light of the above, the Supreme Court believes that the Court of Appeal has correctly made a concrete assessment of the facts, considering that the conduct of a worker aiming to provoke her colleague is not comparable to that of a worker who merely reacts to the aggression of others. Consequently, the Supreme Court of Cassation dismissed the woman’s appeal and confirmed the lawfulness of the order of dismissal.