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’.
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Dismissal for just cause of worker who gives personal badge to others to certify (false) attendance at the company is lawful.
The Italian Court of Cassation, by order no. 10239 of 18 April 2023, confirmed the decision taken by the Court of Appeal of Lecce which had held a dismissal for just cause of a worker who, while absent from work, had given his badge to a colleague to confirm the absent worker’s attendance in the workplace to be lawful. In the context of the assessments carried out by the Court of Appeal and then confirmed by the Court of Cassation, both the dismissed worker’s allegedly minor absence from work and the fact that no damage had been caused to the employer’s company were irrelevant for the purposes of assessing the lawfulness of the dismissal. Moreover, in the opinion of the Court of Cassation, the Court of Appeal of Lecce had correctly highlighted how the fact that the worker had already carried out similar fraudulent conduct on other occasions gave the episode, which was the subject of the dispute, particular gravity thus justifying the dismissal. In the context of their assessments, the Court of Cassation judges then confirmed the limits on challenging, within the appeal analysed by them, the activity [carried out by the trial judge] in interpreting that the conduct of the worker fell within the provisions of Article 2119 of the Italian Civil Code, for the purpose of identifying the just cause for dismissal, on the basis of which an appeal cannot put forward a reconstruction and assessment of the facts different from that underlying the contested decision.
The facts of the case and the outcome of the trial
The case originates from the dismissal for just cause, of which notice was given on 23 May 2017, of a worker who was accused of having given a colleague his personal badge so that he could falsely certify his attendance at the workplace.
The employee challenged the dismissal judicially, arguing that it was unlawful and seeking, primarily, reinstatement in the post previously occupied and, in the alternative, that the employer company be ordered to pay damages.
In both the summary phase of the so-called Fornero Procedure (Rito Fornero) and in the opposition phase under Article 1, paragraph 57, Italian Law no. 92/2012, the Court of Taranto rejected the worker’s complaint, confirming the lawfulness of the dismissal.
By judgment no. 290/2019, the Court of Appeal of Lecce rejected the appeal brought by the worker and confirmed the first instance judgment of the Court of Taranto. Specifically, the Court of Appeal of Lecce observed that, although it was not possible to ascertain to what extent the improper use of the badge had allowed the worker to falsely certify his attendance at the company, the assessment of the existence of the just cause for dismissal concerned specifically ‘the improper use of the attendance monitor’, which, according to a specific internal service directive, had necessarily to be carried out personally by the workers and not by complicit third parties ‘as was pointed out to the worker, thus making the duration of the absence from the workplace irrelevant’.
On the basis of those considerations, the Court of Appeal of Lecce had therefore considered the sanction of dismissal imposed as proportionate, since the conduct complained of was an abuse of trust punishable by dismissal under the national collective bargaining agreement applied to the employment relationship in question.
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With Order No 7029, of 9 March 2023, the Italian Court of Cassation, reversing the conclusions reached by the Court of Appeal of Bologna, deemed legitimate since justified by a just cause the dismissal of a worker who, derisorily, had turned against a colleague telling her in dialectal form ‘but why did you get pregnant too?’, ‘but why aren’t you a lesbian’, ‘and how did you get pregnant?’.
The facts of the case
The situation in question had occurred at a bus stop, where the colleague was waiting to take up service as a driver, in the presence of other people, while both the fired worker and the person they spoke to were in uniform and therefore recognizable as employees of the company employer.
The employee, fired by the company, challenged the dismissal and obtained, on appeal, partial acceptance of his appeal. Specifically, the appeal judges believed that the episode contested against the employee, albeit undisputed from a factual point of view, should be relegated to ‘substantially uncivilized’ conduct punishable at the most with a conservative sanction (suspension from pay and service) .
The order of the Italian Court of Cassation
The Italian Court of Cassation, in overturning the decision of the appeal judges, reiterates that, according to established jurisprudence, the ‘just cause’ of dismissal pursuanttoArticle 2119 of the Italian Civil Code integrates a general clause, which requires to be actualised by the interpreter through appreciation of external factors relating to the general awareness and the principles tacitly referred to by the law, therefore through declinations that have a legal nature and whose non-application can be deduced before the Italian Court of Cassation as a violation of the law.
According to the Judges of the Court of Cassation, the assessment made by the trial judge in attributing the disputed conduct of the employee to mere “uncivilised” behaviour would not conform to the values present in the social context and to the principles of the legal system, referring, in fact, to a behaviour contrary only to the rules of good manners and the formal aspects of civil life, where the content of the expressions used and the further factual circumstances in which the behaviour of the employee must be contextualized are instead in contrast with much more meaningful values now rooted in the general awareness and are expression of general principles of the legal system (Articles 2, 3, 4 and 35 of the Italian Constitution).
General principles which, the Court continues, find precise declination in the legal system through the provision of anti-discrimination regulations in various ways aimed at preventing or repressing forms of discrimination linked to gender, among which Italian Legislative Decree no. 198/2006 (Italian Code of equal opportunities between men and women) whose Article 26, first paragraph, also identifies harassment as discrimination, namely those unwanted behaviours, carried out for reasons connected to gender, with the purpose or effect of violate the dignity of a female or male worker or create an intimidating, hostile, degrading, humiliating or offensive environment.
In the light of the above considerations, the Court quashed the decision of the Court of Appeal for the review of the overall case in order to verify the existence of just cause for the dismissal notified to the concerned worker in the light of the correct reference value scale reconstructed by the Court itself in the order in question.
Other related insights:
In its ruling no. 20 of 27 May 2022, The Court of Udine stated that absence from work without providing any justification to force the employer to dismiss for unjustified absence, is unlawful. Such conduct constitutes resignation by facta concludentia, even without complying with the electronic procedure.
The Court ruled that a worker who did not carry out the procedure, absented herself for several days to force her employer to dismiss her for unjustified absence to obtain NASPI had conducted unlawful behaviour. The Court held that the conduct of the employer who notified the employment centre of the worker’s resignation, thus depriving her of her right to unemployment benefits, was correct.
The employment termination must be out of the worker’s control, for example in cases of disciplinary dismissal, to obtain the NASPI payment.
This is the reason for the unlawful practice by certain employees of voluntarily and unjustifiably absenting from work to be dismissed for just cause and receive unemployment benefits.
The Court stated that the electronic procedure under Art. 26 Legislative Decree no. 151/2015, while having the objective of ensuring the authenticity of the resignation submitted by the worker and allowing them to be free from conditioning, did not abrogate the effects of Articles 2118 and 2119 of the Italian Civil Code, which offered the worker the opportunity to resign “de facto” by conduct through a series of workplace absences.
The Court of Udine’s interpretation allows employment termination by conduct; a requirement included in the delegated law no. 183/2014 which remained unimplemented in Legislative Decree no. 151/2015. If the worker does not act in submitting a formal resignation – which has already factually occurred – the employment termination cannot be achieved only by dismissal for just cause.
Such a solution would be “unreasonable” and “of dubious constitutional compatibility” and contrary to the principles of reliance and good faith in an objective sense. A dismissal “imposed” on the employer would give rise to a public benefit disbursement to the dismissed person to protect a fictitious unemployment. This unemployment resulted from free choice and not involuntarily suffered by the worker.
Other related insights:
In ruling no. 19321, published on 15 June 2022, the Court of Cassation considered the dismissal for justified subjective reason for an employee who worked during leave for “serious family reasons” legitimate.
In the case covered by the Court of Cassation’s ruling no. 19321/2022, on 15 May 2017, a worker requested to take leave from 1 June 2017 to 30 September 2017. In response to the company’s invitation to specify the reasons for the request, he attached his wife’s medical certificate of pregnancy, which specified concerns related to miscarriage and prescribed 30 days of home care and rest.
The company, in a note dated 1 June 2017, granted the request, qualifying it as a leave of absence for “serious family reasons” under Art. 157 (formerly Art. 151) of the relevant national collective agreement and Art. 4, paragraph 2, of Law no. 53 of 2000.
During the period of leave, the company conducted some investigations, during which it emerged that the employee carried out cleaning for the company he and his wife owned.
On 1 August 2017, the company initiated disciplinary proceedings, which ended with the dismissal for just cause announced to the employee on 25 August 2017.
The Court of Appeal held that the justified subjective reason for dismissal existed because the worker violated the express prohibition, under Art. 4, paragraph 2, Law no. 53 of 2000 and Art. 157 of the collective agreement, to work during the period of leave for serious family reasons.
The employee challenged the measure in an appeal to the Court of Cassation, claiming that the leave requested (i) was for “personal reasons” and not “serious family reasons.” Therefore, the above legal provisions and consequent prohibitions did not apply (ii) it had not entailed any financial benefits for the worker, since the work had been performed at his own and his wife’s company; (iii) it had not caused any damage to the company, which was under a system of “defensive solidarity” contracts and, had not needed to replace the employee.
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