With Order No. 27610 of October 24, 2024, the Italian Supreme Court ruled that a dismissal for cause was lawful in the case of an employee accused of repeatedly abusing work breaks by spending excessive time at a bar with colleagues.
The legal proceedings originated from the dismissal of an employee for cause following repeated unexcused absences. An investigative agency documented three instances where the employee spent over 30 minutes engaging in conversations with colleagues near a bar during work breaks.
Initially, the Court of First Instance acknowledged the facts but deemed the dismissal disproportionate, awarding compensatory damages instead. However, the Court of Appeal in Catanzaro reversed this decision, affirming the dismissal’s legitimacy. The appellate court highlighted that the employee’s extended absences were not mere physiological necessities but constituted improper use of work time.
The court also emphasized the heightened severity of these breaches due to the employee’s senior role, which involved significant responsibilities and coordination of workers in a critical sector—waste collection. These actions, the court noted, could undermine public perception and trust in the service. Furthermore, it ruled that the behavior had potential criminal implications or could deceive the employer, harming both the company’s assets and its external reputation.
The Supreme Court upheld the employer’s right to protect its reputation, particularly in public-facing sectors like waste management, where public trust directly affects service effectiveness. It reaffirmed the importance of the company’s image as a key asset.
The court also clarified the limits of using private investigators, prohibiting indiscriminate monitoring of job performance. However, it acknowledged the employer’s right to engage investigators when there is suspicion or evidence of unlawful activities by an employee.
Finally, the court broadened the concept of “company assets” to include not only tangible assets but also the company’s external image.
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The Court of Cassation, in its order no. 18296 of 4 July 2024, ruled that an employee who adopts stubborn attitudes with respect to the company’s business irreparably damages the trust relationship with the employer and may therefore be subject to dismissal.
The present case specifically involved an employee of an environmental services company, who worked as a driver in charge of transporting waste to treatment centers using large vehicles. The employee had refused to carry out his duties, returning to the company with the vehicle still loaded. This behaviour exposed the employer to potential administrative sanctions and environmental violations, as well as complaints from the municipality, the sole client.
The employee had refused to unload the waste, initially referring to reasons related to delays in unloading the waste and later health reasons.
Despite repeated requests from his superior to proceed with unloading or to wait for a change of driver, the worker returned to the company without having completed the job.
The worker argued that, based on the National Collective Bargaining Agreement for employees of environmental services and the company’s disciplinary Code, insubordination could only be punished with conservative sanctions, such as suspension, limiting dismissal for more serious cases, such as those involving “de facto behaviour”.
The Court of Appeal, reforming the first-instance judgment, determined that the worker’s actions were not simply insubordination but amounted to a serious breach of duty, further complicated by administrative and legal consequences for the company. Such behavior constituted “just cause” for dismissal.
The employee subsequently appealed the judgment to the Supreme Court of Cassation.
The Court of Cassation stated that in the context of disciplinary dismissal, the notion of insubordination cannot be limited to the refusal to comply with the directives of superiors but includes any behaviour that undermines the execution and proper fulfillment of those directives within the framework of the company’s organization (Cass. No. 13411/2020).
In this case, the Supreme Court considered the employee’s behaviour to be more serious than mere insubordination.
The Court concluded that the employee’s intentional refusal to comply, together with his decision not to wait for the driver change and to return to the company with the load of waste – thereby obstructing waste disposal operations and exposing the employer to possible administrative sanctions – constituted a serious breach of trust and contractual obligations, justifying dismissal for just cause.
In conclusion, the Supreme Court rejected the employee’s appeal, considering the company’s dismissal to be lawful.
In its order no. 26440 dated October 10, 2024, the Court of Cassation, Labor Section, reaffirmed the legitimacy of the dismissal imposed on an employee who had addressed a client in a rude and vulgar manner, once again underscoring the boundaries of judicial review in determining “just cause” for termination.
The judicial proceedings originated from the disciplinary dismissal of an employee assigned to the butcher counter of a supermarket, who had been accused by the employer of addressing an elderly customer with aggressive and inappropriate language.
While the court of first instance upheld the employee’s challenge to the dismissal, the Court of Appeal of Cagliari reversed this decision, confirming the legitimacy of the dismissal order.
In this case, the appellate court considered the employee’s behavior a serious breach of his contractual obligations, particularly the duty to “use courteous manners with the public and maintain a conduct consistent with civic duties,” warranting disciplinary dismissal pursuant to Article 215 of the collective bargaining agreement for employees in the Tertiary, Distribution, and Services sector, which governed the employment relationship.
The Court specifically emphasized the seriousness of the employee’s conduct, noting that the counter attendant, on that occasion, not only failed to apologize to the elderly customer but also escalated the argument with increasingly heated tones, resulting in what was described as “an undignified and somewhat concerning scene.” In assessing the appropriateness of the dismissal, the Court of Appeal also took into account the employee’s prior disciplinary record from the preceding two years. Although these prior incidents were not specifically similar, they highlighted a pattern of repeated non-compliance with company rules, rendering the continuation of the employment relationship unsustainable.
In the ruling under discussion, the Court of Cassation, by rejecting the employee’s appeal against the Cagliari Court’s decision, seized the opportunity to consolidate its stance and reaffirm certain prevailing principles concerning termination for just cause under Article 2119 of the Civil Code.
In particular, the Court of Cassation observed that “just cause,” understood as conduct that precludes even temporary continuation of the employment relationship, falls within the scope of so-called general clauses—normative provisions of limited and general content that require judicial specification in interpretation, “through consideration of both external factors relating to general societal awareness and principles implicitly referenced by the provision itself.”
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Sending the medical certificate by fax is a valid method of notification of illness by the employee, as it is expressly provided for in the company’s rules.
The Supreme Court, in its order no. 25661 of 25 September 2024, held that the dismissal of an employee who communicated his illness via fax, while on holiday abroad, was unlawful. The Court stated that this method of notification was in accordance with the company’s rules. Furthermore, the Supreme Court emphasized that the notification of illness could also take place in a form other than by registered letter, if provided for by the company’s rules.
Employment relationship – Notification of illness – Method of transmission – Medical certificate – Fax as valid instrument – Company rules – Presumption of receipt – Documentation of transmission – Employee’s conduct – Illness abroad – Dismissal – Valid transmission
Notification of illness to the employer may be validly effected by fax if that method is expressly provided for in the company’s rules. In such circumstances, the fax is deemed to have been correctly received by the employer if the employee can prove, by means of transmission reports, that the notification was successful, even if there is no record on the company’s servers. The employee’s conduct in notifying the employer of his illness from abroad, although potentially negligent, will not constitute a valid reason for dismissal unless it can be shown that the employee was aware of the failure of the transmission.
The case examined by the Supreme Court concerns a dismissal for just cause due to “unjustified absence of more than four days” against an employee who became ill while he was on vacation in Romania. The employee argued that his absence was justified, stating that he had contracted the illness during his vacation and, therefore, had sent the medical certificate by fax, in accordance with the company’s rules.
Following the dismissal, the employee challenged the measure before the Court of First Instance of Treviso, (Italy) requesting the repeal of the dismissal due to the non-existence of the alleged infringement.
The main argument in the company’s defense consisted in the alleged inadequacy of the illness notification. Specifically, the company claimed that the employee did not respect the procedures set out in the company’s rules, which, according to the company, required both a more “formal” notification, typically through registered mail, and a telephone call notice. The employee, however, disagreed, stating that sending a fax was an acceptable method according to the rules, and that the certificate had been transmitted correctly, as evidenced by the transmission report.
During the preliminary hearing, the Court of First Instance of Treviso upheld the employee’s appeal, declaring the dismissal null and void and ordering his reinstatement. Additionally, it ordered the company to pay an equal compensation «to the employee for the period from the date of dismissal until his actual reinstatement, based on his gross salary».
Against the Court of First Instance’s decision, the Company brought the case before the Court of Appeal of Venice. The latter partially upheld the appeal, confirming the unlawfulness of the dismissal and the employee’s reinstatement, re-determining the compensation to twelve months’ salary.
The Court stated that Article 40 of the applicable national collective bargaining agreement provides for unjustified absence of four days or more as grounds for disciplinary dismissal, including in the definition of unjustified absence also late communication and late sending of the medical certificate.
Moreover, according to the company’s rules, it was the employee’s precise duty to notify the employer on the day of the event, in addition to sending the medical certificate.
Furthermore, it turned out that the employee had not documented any impediment justifying the failure to notify; in fact, the only text message sent was dated days after the beginning of the disputed absence.
A final significant aspect examined by the Court of Appeal concerned the employee’s failure to allege a possible impediment to telephone communication. On this point, the Court of Appeal noted that «the employee has not demonstrated an impediment of such gravity as to radically exclude the possibility of a prior serious attempt to contact the company director». Finally, it stated that «the employee has behaved in a formally obsequious manner in relation to contractual obligations, but he has only minimally fulfilled them».
Consequently, the Court found that the employee had failed to comply with the obligation to notify the employer by telephone, in breach of the company’s rules and of the duty of care required in the context of a subordinate employment relationship.
The company appealed to the Supreme Court on five grounds against the decision of the Court of Appeal.
The first ground of appeal was based on the alleged nullity of the judgment on the ground that the Court of Appeal had made contradictory and irreconcilable statements. In particular, the judges of the appeal had «first affirmed that the employee’s conduct was neither linear nor based on the essential rules of diligence required by the employment relationship» and then « excluded the existence of a just cause that allowed the dismissal».
The Court of Cassation rejected the aforementioned argument, stating that the contradiction was only apparent, as the Court of Appeal had considered sufficient both the method of transmission by fax, as provided for in the company’s rules, and the proof of its receipt in the transmission report submitted by the employee at the trial, since a similar fax had been sent to the INPS and duly received by it.
In its second plea, the company challenged the Supreme Court for finding that fax transmission was “appropriate”.
The Court of Cassation held that the plea was not grounded because «fax is a method provided for by the company’s rules» and «the law does not exclude equivalent methods according to the forms of use that may be provided for by the company’s rules».
In its third ground of appeal, the company argued that the Court of First Instance of Treviso had contradicted itself by «first stating that it was only during the trial that the employer was able to verify the content of the fax, i.e. the medical certificate, and then stating that there was no evidence of falsification or alteration of the message».
Also in this case, the Court of Cassation rejected the company’s arguments, stating that the fax was a valid means of communication, as provided for in the company’s rules, so that «the knowledge of the addressee is irrelevant for the purposes of the fact that is the subject of the disciplinary complaint».
By its fourth ground of appeal, the company challenged the local Court’s presumption of the correct receipt of the fax based on the only available information concerning the actual sending of the fax.
The Court of Cassation stated that «the employee’s obligation ends with the confirmation of the successful transmission of the fax», thus confirming that «the employee’s conduct is therefore exempt from liability».
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Decree-Law No. 131/2024, published in the Official Gazette on 16 September and in force since 17 September, introduced important changes for employers in the management of fixed-term contracts. This measure, known as the “Decreto Salva Infrazioni”, meets the request of the European Union – which started an infringement procedure against Italy – to align national legislation with the EU Directive 1999/70/EC on fixed-term work.
In particular, the EU Commission found that the provision of a minimum and, especially, a maximum payment to the worker was not an effective deterrent against the abuse of fixed-term contracts.
The Decree in question has therefore amended Article 28, paragraphs 2 and 3 of Legislative Decree No. 81/2015 (“Jobs Act”), introducing significant changes regarding the compensation indemnity for damages in case of fixed-term contracts declared unlawful.
One of the most impressive aspects for companies concerns the extension of the judge’s power to set compensation indemnity exceeding 12-month instalments in cases of unlawful fixed-term contracts. Previously, when a fixed-term contract was converted into an open-ended contract, the employee was entitled to a lump sum indemnity ranging from 2.5 to 12-month instalments of the last reference salary for calculating severance pay. Now, as a result of the amendment introduced, the employer may be sentenced to pay significantly higher sums if the employee proves greater damage, such as an extended period of litigation.
Another important change is the abrogation of the 6-month limit on indemnity due to workers in the case of fixed-term contracts that have been declared unlawful, a limit that previously applied in the case of collective agreements that provided for procedures to stabilize fixed-term workers. Under the previous legislation, companies could benefit from this cap, reducing the economic risk associated with any disputes.
The amendments introduced by the “Salva Infrazioni” decree imply a significant change in the management of human resources for employers. In fact, they will have to pay more attention to complying with the rules on fixed-term contracts, avoiding abuses and ensuring the correct application of the rules in force. As a result, companies will have to adopt a more prudent and rigorous strategy in the use of fixed-term contracts in order to reduce the risk of expensive claims.
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