The Court of Cassation, with the sentence no. 4879 of 24 February 2020 confirmed that the reinstatement protection provided by article 18, paragraph 4 of Law 300/1970 in case of “inexistence of the claimed fact” is also applicable in the case of inexistence of the claim or if the same contains facts different than those used as the basis for dismissal.
Facts of the case
The court events resulting in the ruling of the Supreme Court witnessed the progression of two decisions aligned by the territorial trial judges.
The Court of Appeals, confirming the ruling of the judge of first instance, considered that:
Lastly, based on these findings the fairness of the applied reinstatement protection was confirmed, without finding the different issue of the proportionality between the dismissal and fact of modest unlawfulness.
Against the second instance decision, the employer filed an appeal in Cassation Court, deducing that procedural mistakes, even serious, can give rise only to a reduced indemnity benefit, while the other benefits may apply when there is a substantial lack of justification for the dismissal.
The decision of the Court of Cassation
The Court of Cassation observed that in the presence of a formally vitiated dismissal, and thus ineffective, due to violation of the motivation obligation, application of a reduced indemnity (still replacing the job) penalty is admissible, as long as variable from a minimum of 6 to maximum of 12 monthly salaries, taking into account the seriousness of the committed formal violation (article 18, paragraph 6 of the Workers’ Statute).
In any case, according to the Court of Cassation, without prejudice to application of different protections included in article 18, paragraphs 4, 5 or 7 – replacing the reduced indemnity benefit and not in addition to it – if, based on the worker’s claim, the unjustness of the dismissal emerges. Unjustness of the dismissal means the inexistence of a subjective or objective just cause or a just cause where the burden of proof, once the worker has explained his claim, remains the responsibility of the employer as per article 5 of Law 604/1966.
The Court of Cassation – faced with the debated issue of identifying an applicable protection regime in the event of initial omission of claim of certain behaviors – thus established that “where the dismissal is notified without disciplinary action, the same continues, as in the past, to be considered unjustified and is punished with reinstatement and limited compensation effects”.
Justification of the reintegration benefit, again according to the Court, is found in the fact that, according to article 18, paragraph 4 of the Workers’ Statute, such protection is provided in case of “inexistence of the claimed fact”, which implicitly cannot also include the supposition of inexistence of the claim.
Based on all of the mentioned motivations, the appeal of the employer company was rejected, since it was considered completely groundless.
The Court of Cassation, with judgment No. 1394 filed on 22 January 2020, once again drew attention to the use and potential abuse of leave to assist disabled family members pursuant to Article 33, paragraph 3, of Law No. 104 of 1992. In particular, the Supreme Court, in affirming the principle that such leave is granted “in order to assist the disabled person and in a direct causal relationship with that assistance“, has ruled out that they may be used “merely as compensation for the energy used by the employee for that assistance“.
The facts
The Court of Appeal of L’Aquila upheld the decision of the Court of Pescara where the latter had considered it lawful to dismiss a worker for just cause for abusing his leave under Article 33 paragraph 3 of Law No. 104/1992.
The District Court found evidence of four instances of abuse of leave by the employee, in light of a report from an investigating agency (commissioned by the employer). In particular, it had been demonstrated that out of four days of leave, the employee had gone to the home of their disabled father for only 15 minutes on only one of the four days.
Against the decision of the Court of Appeal, the worker appealed to the Court of Cassation on the sole ground of appeal, alleging infringement and misapplication of Article 33 paragraph 3 of Law No. 104 of 1992. Specifically, the worker pointed out that the rule referred to does not impose a necessary time connection between the period of the leave and the period of direct assistance to the disabled family member.
The decision of the Court of Cassation
The Court of Cassation, in rejecting the appeal and confirming the lawfulness of the dismissal for just cause, recalled a well-established trend in the case law according to which “on the basis of the rationale of Law No. 104 of 1992, Article 33, paragraph 3, which attributes to the employee (…) who assists a disabled person in a serious situation (…) the right to three days’ paid monthly leave, covered by imputed contributions, it is necessary that the absence from work is directly related to the need for which the right is recognised, i.e. assistance to the disabled person“. (See Court of Cassation No. 1529/2019; Court of Cassation No. 8310/2019; Court of Cassation No. 17968/2016; Court of Cassation No. 9217/2016; Court of Cassation No. 8784/2015)
The Supreme Court emphasises that the concept of assistance – even if it is to be understood in a broad sense (since it may also consist in carrying out tasks of an administrative, practical or any nature) – cannot in any event disregard the existence of a direct causal relationship with the interest of the assisted family member (See Judgement of the Court of Cassation No. 23891/2018).
Therefore, the Supreme Court continues, “an employee who does not make use of the leave provided for by the aforementioned Article 33, in line with the function of the same Article, commits an abuse of the right in that it deprives the employer of the job performance in violation of the trust placed in the employee and constitutes, with respect to the social security fund providing the salary compensation, an undue receipt of the allowance and a misuse of the welfare intervention” (see Court of Cassation No. 17968/2016).
The Court of Cassation, in the judgment in question, also confirms its case law regarding the lawfulness for the employer to use investigative agencies to monitor its employees. This, especially during periods of suspension of the employment relationship, when becoming aware of the worker’s behaviour, which, although unrelated to the performance of the work activity, is relevant from the point of view of the correct fulfilment of the obligations deriving from the employment relationship (See Court of Cassation No. 18411/2019).
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In view of the above, no function other than that of assistance to the family member with a disability can be attributed to the leave to assist this family member or that is in any case in direct causal relation to it.
It is therefore to be excluded that the leave pursuant to Article 33, paragraph 3, Law 104/1992 may have a purely compensatory or restorative function of the energy used by the worker for the assistance provided.
Therefore, according to the content of the judgment in question, where an employee uses the leave in question for purposes other than those referred to above, they will be committing an abuse of rights which is also relevant from a disciplinary point of view and which will make it lawful for the employer to dismiss them for just cause.
The Court of Cassation – with judgment no. 21621 filed on 4 September 2018, has ruled that a disciplinary dismissal for circumstances established by a private detective is not lawful if such dismissal is based on facts occurred within the context of the performance of the job duties and connected to the latter. In the case at hand, a worker had been responsible for tampering with the attendance sheet, in order to conceal his absence from work. On discovery of the worker’s conduct, by way of a private investigation agency, the company activated against him a disciplinary procedure, which ended with a dismissal for cause. The worker appealed against the measure and the court ruled that the company conduct was lawful. Called upon the issue, the Court of Cassation reversed the outcome of the litigation. Having examined the documentation of the case, the Court of Cassation ruled that any circumstance relating to the correct performance of job duties must be assessed by the employer or persons within the company organization. In any case, this does not preclude the possibility for a detective to be actually hired to establish the existence of conducts legitimising the disciplinary measures. However, according to the Court of Cassation, “the control carried out by security guards or investigation agencies cannot concern under any circumstance the fulfilment or non-fulfilment of the contractual obligation to perform one’s own duties” since the investigation “must be limited to the worker’s breaches that are not related to a mere fulfilment of the obligation.” In other words, the hiring of an investigation agency is justified in the case of wrongdoings and the need to establish their nature, even if there is suspicion or a mere supposition that the wrongdoings are being committed.
The Court of Cassation, with its judgement No. 29613 dated 11 December 2017, declared lawful the dismissal for just cause ordered to an employee who carried out another activity during his absence from work, in addition to an injury, to assist a family member with disability pursuant to article 33 of Law 104/1992. In particular, the Court of Cassation deemed valid the decision with which the competent local Court of Appeals confirmed the judgement of the Court of first instance and rejected the employee’s appeal against the dismissing measure. According to the Court of Cassation, first of all, the fact charged against the employee was adequately detailed and properly met the requirements for providing adequate defence, since the days on which the work activity would have been carried out, were indicated. Regarding the seriousness of the complaint which led to the dismissal, the Court pointed out that the fraudulent conduct committed by the employee was such as to irremediably damage the relationship of trust established as a basis for the employment relationship, especially in consideration of the “… reason for the leave for disability dishonoured by the obvious lack of interest shown toward the family member under denied assistance”.
The Court of Cassation, in its judgement No. 25147 dated 24 October 2017, deemed lawful the dismissal for just cause ordered to an employee who downloaded company data (not password-protected) on a personal pen driver, without disclosing them to third parties. According to the Court, indeed the fact that the employee had not disclosed the data unlawfully stolen from the company servers, but only saved them on a pen drive, was not sufficient to determine the unlawfulness of the dismissing measure issued without notice on the basis of National Collective Bargaining Agreement (CCNL) of the sector. This, because that conduct still constituted a violation of the obligations of due diligence and loyalty referred to in Article 2105 of the Civil Code. The Court of Cassation, in the course of the argument as a basis of the decision, also pointed out that even the failure to protect company data with passwords would have not affected the lawfulness of the employer dismissal. This because the nature of the data, which was obviously confidential, remains such even if access to employees is free nor this can in any way legitimize the conduct of the employee. Basically, the employee must not perform activities contrary to the interests of the employer, meaning those that, although not currently causing damage, have the potential to do harm.
