Worker’s recidivism also taken into account for purposes of correct legal classification of conduct within context of just cause for dismissal.

The Italian Court of Cassation, Employment Division, with judgment no. 15140 of 30 May 2023, returned to deal with the dismissal for just cause of a worker on a fixed-term contract for repeated negligence in the performance of the work, having been found to be recidivist in the negligent conduct, and who had already been sanctioned by disciplinary suspension.

The Court of Appeal, confirming the first instance judgment, rejected the appeal of the former employee, considering the existence of just cause underlying the dismissal imposed by the employer.

The first instance judgment was based on an assessment of the seriousness of the conduct and the proportionality of the sanction, with reference both to the provisions of the applicable collective agreement and to the employee’s specific recidivism.

The worker appealed to the Italian Court of Cassation, asking the court to overturn the judgment on the basis, among other things, of erroneous or misapplication of mandatory rule of law, to the extent that the dismissal fell within the case of dismissal ‘for poor performance’, and therefore a justified subjective reason and not ‘for just cause’.  

The Italian Court of Cassation, in its reasoning rejecting the worker’s appeal, referred to its consistent case law according to which the assessment of the seriousness and proportionality of the conduct are the responsibility of the over-reaching and investigative activity of the Judge on the merits, which must refer on the one hand to the actual facts of the case, of an objective and subjective nature, and, on the other hand, the weighting carried out by the collective bargaining agreement. This is because ‘the scale of values expressed by the collective partners must constitute one of the parameters to which reference must be made to fill in the general clause of Article 2119 of the Italian Civil Code’.

Continue reading the full version published at Norme e Tributi Plus Diritto of Il Sole 24 Ore.

On 12 November 2021, in its ruling no. 33809, the Court of Cassation returned to the issue of employer controls using electronic tools, considering the principles and restrictions applicable to personal data protection. The Supreme Court confirmed that an employee’s PC data are company assets. Therefore, an employer can acquire and use the data for disciplinary and defence purposes without violating the privacy legislation, and in compliance with the duties of fairness, relevance and non-excessiveness. Over time, the legislation on personal data protection has evolved as case law has revealed the fundamental principles balancing the employer’s right to control and the employee’s right to privacy.

The key provision is Art. 4 of the Workers’ Statute (Law 300/1970); in its original version, i.e. before the amendment made by the Jobs Act (Legislative Decree no. 151/2015), the rule provided for two levels of protection of the worker’s private sphere “one through the prohibition of audio-visual systems and other equipment for worker remote control purposes which is unsupported by reasons inherent to the company. The other, weaker protection, is when the controls were attributable to the objective needs of the company. This is without prejudice to controls with “guarantee procedures”” (see Court of Cassation 22 September 2021, ruling no. 25732). Following the reform implemented by the Jobs Act, the new Article 4 re-proposed the prohibition of using audio-visual equipment and other tools which involve the possibility to remotely controlling workers’ activities. The rule confirmed the general exception to this prohibition which, in the presence of a trade union agreement or, based on the Labour Inspectorate authorisation, justifies the installation of systems and tools allowing remote control, provided that it is justified by (i) organisational and production requirements, (ii) safeguarding safety at work and (iii) protection of the company’s assets. 

A change of significant regulatory impact (although reduced in practice and case law by a protective approach) was introduced by the second paragraph of the new provision. This paragraph stated that the general prohibition (with the obligation of agreement or authorisation) does not apply to tools used by workers to perform their work or those for recording access and attendance.

Without prejudice to the above, information collected through lawful controls, under Art. 4 of the Workers’ Statute may be used for purposes related to the employment relationship (including disciplinary purposes), subject to certain conditions, i.e., a) the worker has received adequate information about the tools’ use and control methods and b) compliance with the provisions set out in the data protection (represented by Regulation (EU) 2016/679 and Legislative Decree no. 101/2018.

Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.