In its ruling no. 3820 of 7 February 2022, the Court of Cassation established that the disciplinary notice shows the worker of the facts of which they have been charged to allow them to exercise their defence rights. It does not contain evidence, especially when it comes to facts beyond the employer’s direct knowledge which take place outside the company. In such cases, it is sufficient for the employer to specify the source of its knowledge.
A company initiated disciplinary proceedings against two employees of a motorway toll booth, who were accused of affixing paper to the automatic gate’s optical barrier to prevent the system from detecting vehicles in transit and personally profit from the tolls. The disciplinary proceedings, which centred on the conduct they carried out on 27 October 2016 and other circumstances set out in an annex to the letter of complaint, ended with their dismissal for just cause.
The dismissed employees challenged the dismissal before the local court, which rejected the appeal in the summary stage, but it was upheld in the opposition stage, declaring the dismissal unlawful and ordering the company to reinstate them.
The Court of Appeal of Naples, before which the unsuccessful company appealed, upheld the complaint lodged and, reforming the first instance ruling, rejected the employees’ original application to challenge the dismissal.
The local Court held that the dismissal was lawful because of (i) the degree of trust required by the position they held, which could not be continuously monitored, (ii) the fact that they had dealings with the users and represented the company; (iii) the responsibility associated with the handling of money. According to the local Court, the argument “that the amount stolen was small and the incident isolated” was irrelevant, “because the circumstance that the employees had carried out tricks and deception to take money to the employer’s detriment had a highly negative legal and social implication and irreparably damaged the bond of trust and made the expulsion penalty proportionate.”
The two workers appealed against the Court of Appeal ruling, to which the company replied with a counter-appeal.
The Court of Cassation clarified that, when exercising disciplinary power, the charge notice shows the contested fact to allow the worker’s defence. It does not contain any evidence, especially when it comes to facts beyond the employer’s direct knowledge which take place outside the company. It is sufficient that the employer specifies the source of its knowledge.
The Court of Cassation observed that, for dismissal for just cause, when the employee is charged with several disciplinary offences, it is not necessary for the existence of the “cause” that prevents the continuation of the relationship to be found exclusively in the totality of the offences. According to the Court of Cassation, the judge may – as part of the charges underlying the dismissal by the employer – identify even in any one of them the conduct that justifies the expulsion sanction if this is a severe breach required by art. 2119 of the Italian Civil Code.
The Court of Cassation pointed out that thepenalty proportionality or adequacy assessment for the offence committed is based on assessing the seriousness of the worker’s breach concerning the relationship and circumstances of the case. The breach “must be assessed in an accentuated sense compared to the “not insignificant” general rule under Art. 1455 of the Italian Civil Code, so that the imposition of the maximum disciplinary penalty is justified only if there is a significant breach of contractual obligations (Law no. 604 of 1966, Art. 3) or such as not to allow the continuation, even provisional, of the relationship.” In this case, the breach of trust is connected to the use by the employees, of artifices and deception to take money (regardless of its amount) from the employer.
Given the above, the Court of Cassation dismissed the employees’ appeal and ordered them to pay the costs of the proceedings.
The Court of Cassation, with its ruling no. 25731 of 22 September 2021, stated that, in the absence of prior information under Article 4, para. 3, of Law no. 300/1970, the employer cannot use the data found in a company chat room where an employee bad mouths their superiors and colleagues, for disciplinary purposes.
An employee was dismissed for just cause because a conversation was found where the employee while chatting with another colleague, had used heavily offensive words towards a hierarchical superior and some other colleagues. The conversation was found during a check carried out by the IT staff to verify if there was company data to be kept, before closing the chat.
The Court of First Instance, first, and then the Court of Appeal, held that the dismissal for just cause was unlawful.
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Article 4 of Law 300/1970 provides as follows:
1. “Audiovisual equipment and other tools which provide for the possibility of remote control of workers’ activities may be used exclusively for organisational and production requirements, for work safety and the protection of company assets, and may be installed subject to a collective agreement entered into by the unitary trade union representatives or company trade union representatives. (…)”
2. The provision referred to in paragraph 1 shall not apply to the tools used by the worker to perform work (…).
3. The information collected under paragraphs 1 and 2 may be used for all purposes related to the employment relationship provided that the worker is given adequate information on how to use the tools and checks carried out and under Legislative Decree no. 196 of 30 June 2003 .”
The latter paragraph specifies the need to inform employees of the tools use and monitoring methods, especially if the tools installed for the needs referred to in the first paragraph or assigned to perform the work referred to in paragraph 2 include any remote monitoring of the workers’ activity. This is so that the data collected is used for purposes related to the employment relationship, including any disciplinary measures.
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The Court of Appeal of Milan found that the company’s access to the chat room was unlawful, as it was carried out in breach of the above paragraph 3, since the employer had failed to provide the necessary timely and adequate information to employees on the monitoring methods.
The losing company appealed to the Court of Cassation.
The Court of Cassation, referring to the arguments put forward by the Court of Appeal of Milan, stated that the company’s access to the company chat room was unlawful because it was carried out in violation of Art. 4, para. 3, Law 300/1970. According to the Court, the company chat room is to be qualified as a work tool within the meaning of paragraph 2 of the above Article 4. Chat room monitoring could only have taken place by providing workers with “adequate information on how to use it.“
In this case, there were company regulations which provided for the possibility of carrying out checks on the chat during maintenance, updating or to obtain useful data for cost planning. However, no prior and adequate information had been provided to the employees on the monitoring due to the chat closure and its progressive abandonment, nor on the tool monitoring methods. On the contrary, the communication about the chat service interruption was sent when the checks had already been carried out.
In confirming what was stated by the local court, the Supreme Court held that the material collected could not be used by the employer. This is because the employee’s conversations constituted a form of “private confidential correspondence, which requires protection of the freedom and secrecy of communications under Art. 15 of the Constitution.”
The confidential content of the conversations was also apparent from the fact that the chat room could only be accessed using a personal password and the messages sent could only be read by the recipients, “with the result that access to the chat content is precluded to outsiders and their disclosure and use is not permitted.”
The Court “ruled out a disparaging intent” by the employee, holding that “the e-mails content and the expressions used constituted an outburst by the sender, intended to be read only by the recipient, without any unlawfulness and being a free expression of thought in a private conversation.”
Based on the above, in confirming the decision of the Court of Appeal of Milan, the Court of Cassation held that there was no just cause for dismissal, ordering the employer company to reinstate the employee in her place of work and pay her damages of seven months’ salary.
Other related insights:
In cases of dismissal for justified objective reason, the Judge’s verification of the “manifest lack of the fact“ requirement underlying the dismissal, from which the possibility of employee reinstatement derives, must cover the technical, production and organisational needs stated by the Company, and the possibility of relocating the employee elsewhere within the company organisation.
In its order dated 4 May 2021, the Court of Rome concluded that, even if the objective reason for dismissal due to production reasons was under the employer’s free assessment, and the Judge unable to assess the company management criteria, it is up to the same Judge to check the effectiveness and non-speciousness of the company reorganisation.
The case before the Court concerned the dismissal for justified objective reason of an employee of a company specialising in physiotherapy services. The dismissal was due to financial reasons based on the reduction in turnover recorded by the employer company in the previous three years. In the letter of dismissal, the Company stated the need to carry out “a cost reduction through a company reorganisation which included the tasks carried out [by the employee], and that these would be carried out personally by the director and included in the new information and electronic systems”. The Company dismissed the employee as there was no possibility of assigning her to equivalent positions, as stated by the Company.
The employee challenged the dismissal because it was not based on an effective company reorganisation and that the Company had not complied with the repêchage obligation. She requested the assessment of the lack of the fact underlying the dismissal under art. 18 paragraphs 4 and 7 of the Workers’ Statute, punishable by reinstatement in the workplace plus 12 months’ salary as damages.
The Court held that the dismissal was unlawful. It referred to case law in which the objective reason for dismissal can be identified by a different distribution of tasks among employees for the more cost-effective and efficient management of the Company. This would mean the employee who performed the task exclusively was redundant (Court of Cassation ruling no. 19185/2016 and Court of Cassation ruling no. 29238/2017). The Court stated that it is not sufficient that the tasks formerly carried out by the dismissed employee are assigned to colleagues. The reorganisation must be the source of the dismissal rather than being an effect.
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The Supreme Court With ruling no. 553 of 2021 confirmed the legitimacy of the dismissal for just cause imposed on a worker who had uttered offensive and threatening sentences against the company’s judicial administrator.
The Supreme Court argued that the decision of the Court of Appeal of Bari which had declared the legitimacy of the dismissal was based not so much on the probative value of the report issued by the judicial administrator but on the oral preliminary findings from which the profiles of seriousness of the conduct put in place by the worker, such as to be incompatible with the continuation, even temporary, of the employment relationship.
Not only that, the Court of Cassation specifies that even under the profiles of proportionality and reasonableness, the maximum expulsive sanction must be considered fully congruous with respect to the conduct attributed to the worker.
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The Court of Cassation, with its ruling no. 7567 of 27 March 2020, observed that in the case of just cause the judge is required to verify the conduct the worker is charged with in all the objective and subjective aspects that compose it, regardless of the characterisation contained in the collective contract.
Facts of the case
The case in hand originated from an argument between an employee with worker duties and his shift supervisor in the company’s premises; during this argument the worker kicked the supervisor in the knee.
The worker was dismissed for just cause based on the contents of the National Labour Collective Contract for employees of the chemical and chemical-pharmaceutical industry which considers this case as “serious disruption of company activity” which justifies, dismissal on the spot.
Following a challenge to the dismissal and, in particular, the conclusion of the “Fornero” interim proceeding, the worker obtained cancellation of the same with the additional protection of reinstatement and compensation for damages as per article 18, paragraph IV, Law no. 300 of 1970.
The former employer company, at this point, filed an appeal against the Court’s sentence, which, ascertaining the existence of the fact, rejected the appeal considering the episode, in any case, not suitable for causing a “serious disruption of company activities”.
The first instance ruling was confirmed under appeal: in particular, the district judges of Milan, underlined how the company despite having contested the altercation and the resorting to violence occurring inside the perimeter of the plant, had not however expressed the essential parameter of “serious disruption of company activities”, nor had it explained, as instead it should have, the actual connotation of this within the framework of the entire episode, indicating the effects of the serious disruptions of company activities that had occurred. Consequently, the judges of the counterclaim considered the contestation inadequate for containing any referral to the event and to its seriousness, essential elements both for integrating the same contestation and put the accused in the condition of organising a defence possibly aimed at negating the event and its connotations.
Objecting to the ruling of the second instance the company appealed to the Cassation Court on three motives, challenged by the worker.
The decision of the Court of Cassation
The Court of Cassation invested with the case first underlined how the legal notion of just cause does not consider the provisions of the collective contract. Therefore, “listing of the cases of dismissal for just cause contained in collective contracts has” a “merely exemplary value, therefore it does not preclude an autonomous assessment by the trial judge concerning the adequacy of a serious breach or behaviour of the worker” such as to “cause the fiduciary relationship to cease between the employer and worker”. Thus the Cassation judges observed that in the verification of the existence of just cause or justified subjective motive for the dismissal, the trial judge finds only the limit that “a dismissal cannot be imposed for just cause when it constitutes a more severe punishment than that contained in the collective contract in relation to a certain violation, meaning the conduct claimed against the worker”.Furthermore, in the ruling in question, it states that “the judge called on to verify the existence of just cause or justified subjective motive for dismissal” is still always required to verify if the provision of the collective contract is consistent with the notions of just cause and justified motive. The same must “verify the conduct, in all the subjective and objective aspects that compose it, including beyond the envisaged contractual cases”. Therefore, the characterisation of the cases envisaged by the collective contract in identifying the conducts constituting just cause for dismissal cannot be considered binding.
Thus the Cassation judges, believing that the territorial court had omitted to assess the seriousness of the contested conduct and consequently the proportionality of the dismissal punishment – in contrast with the requirements of article 2119 of the Civil Code – annulled the ruling and referred the case to the Appeals Court in a different formation.
