The Court of Bari, with judgment 2636 of June 10, 2019, found the just cause dismissal lawful of a worker for having posted via his Facebook profile – installed unduly on the company device – messages revealing business secrets to competitors.
Facts of the case
A worker, sixth level business secretary under the National Collective Contract of Tertiary Work, was justly dismissed by his employer. Following the employee’s judicial appeal against the withdrawal, the company revoked the expulsion measure.
Afterwards, the company filed a disciplinary action against the worker for:
- unduly installing Facebook profile on company’s phone using it for frequent and numerous private conversations during working hours;
- having provided, among other things, confidential information regarding the company to competing companies, even after the device had been returned during a period of sick leave.
The company was aware of this information because the telephone remained in the company during the employee’s absence due to illness and incoming messages were checked by a legal representative.
The worker, in justifying their actions, denied these accusations declaring themselves to be completely uninvolved. The company ended proceedings by ordering her to be dismissed for just cause.
The employee objected to the invalidity of the notice of termination, as she was ordered to do so after the termination of employment, i.e. when the reason for the termination of the employment relationship had already occurred.
On the basis of the absence of material fact on which the dismissal was based, the lack of just cause and of infringement of the principles of specificity and the timeliness of the disputes, the worker applied for this unlawfulness to be established and declared, ordering the company to reinstate her, to pay, by way of compensation, a sum equal to 24 months’ total de facto remuneration and to pay social security contributions.
Appearing in court, the company:
- objected to the non-interference between the two dismissals and the lack of conditions for the application of the protection required by the defect of the dimensional requirement;
- confirmed the legitimacy of the second dismissal given the seriousness of the facts complained of;
- counterclaimed that the employee should be ordered to pay EUR 15 000 by way of compensation for the damage suffered as a result of their conduct.
The decision of the Court of First Instance
In the view of the Court of in the First Instance, the conduct of the worker in this case is such as to constitute a just cause for dismissal.
First of all, the Court of First Instance, in accordance with the established case-law on this point, observed that, for the purposes of establishing just cause, the employer must prove, on one hand, the seriousness of the facts alleged against the worker objectively and subjectively, the circumstances in which they were committed and the intensity of the intentional element, and, on the other hand, the proportionality between those facts and the penalty imposed (see Civil cassation, no. 35/2011).
That said, the Court considers that, from an objective point of view, the conduct of the official constitutes a serious disciplinary offence. In particular, the worker, in addition to having unduly installed a Facebook profile on their company phone, has used this device to conduct frequent and numerous private conversations during working hours, revealing, among other things, confidential company information.
The abovementioned, demonstrated in court with screenshots of the individual conversations, were deemed to be so serious as to irreparably damage the relationship of trust with the company. In particular, according to the judge, the conduct constituted a violation of the duties of fairness and good faith as well as of the contractual obligations assumed of diligence and fidelity.
In the light of the above, the Court of First Instance dismissed the employee’s appeal and declared her dismissal to be lawful.
