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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The Court of Cassation, by its decision no. 23858 of 5 September 2024, confirming its previous ruling, stated that, in the hypothesis of a disciplinary dismissal for carrying out other activities during sick leave, the employer bears the burden of proof that the illness is simulated or that the activities carried out during the days of absence could affect or delay the return to work.
A company hired a detective agency to tail an employee who was absent on sick leave.
The investigation report revealed that the employee, during her sick leave (but not during on-call hours), carried out recreational activities and went to a shopping center.
Therefore, the company issued a disciplinary notice in respect of such conduct and subsequently dismissed the employee for just cause, on the grounds that the employee had simulated a state of illness.
The Court of Appeal ruled that the dismissal was unlawful because the alleged conduct did not occur and ordered the company to reinstate the employee.
The Court found that the employer (which bears the burden of proof) had failed to prove the just cause for the dismissal: since a medical visit was not carried out during the on-call hours, on the basis of the mere tailing the proof of the inconsistency between the declared illness and the recreational activities could not be considered to have been reached.
The company appealed to the Court of Cassation, challenging the second decree judgement on the basis of several grounds.
In particular, the company objected that the Court of Appeal had failed to assess the existence of objective presumptions from which to deduce the simulation of illness, as well as to attribute to the employee the burden of proof on the consistency of the illness with the recreational activities that had been challenged.
The Supreme Court logical and judicial approach – which led to the rejection of the company’s appeal – started from the concept of illness relevant for the purposes of suspension from work, which, as the Court stated, “includes situations in which the illness, by virtue of its intrinsic seriousness or its impact on the employee’s normal duties, determines a concrete and current, even if temporary, inability to work” (please make reference to Court of Cassation’s decisions no. 14065/1999 and no. 12152/2024).
Therefore, the judges stated that even if the illness affects the possibility of performing a specific activity that is the focus of the employment relationship, it may still happen that the remaining psycho-physical capacities allow the worker to perform other and different activities.
Consequently, the Court referred to its own precedent on disciplinary dismissal for carrying out other activities during sick leave, reiterating that the employer must prove that the illness was simulated or that the activities carried out during the days of absence were potentially liable to prejudice or delay the return to work.
According to the Court, this assessment must take into account all the circumstances of the specific situation and is entrusted to the Court of Appeal.
The Court of Cassation, therefore, held that the Court Appeal had correctly complied with the aforementioned principles of case-law, by ruling, precisely on the basis of the concrete circumstances (i.e. the entirely marginal nature of the activities carried out by the employee during her illness) and the evidence submitted by the company (the investigation report following the surveillance), that the simulation of the illness by the employee had not been proven.
Other related insights:
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.
Other related insights:
The Supreme Courte, by its decision no. 23852 of 5 September 2024, examined the question of the dismissal for just cause of an employee who, during a period of illness, participated in a football tournament already scheduled, thereby breaching his obligations of diligence, loyalty and fairness, thus jeopardising his recovery or return to work. The employee appealed the dismissal, arguing that the participation in a football tournament during his sick leave did not breach his contractual obligations. The company claimed that the employee had simulated illness in order to participate in the competition, thereby jeopardising his recovery and breaching the principles of fairness and good faith. The Supreme Court rejected the employee’s claim, stating that “the performance of physical activity during the period of illness <<…>> constitutes a breach of the contractual obligations of diligence and loyalty”. Furthermore, it stated that: “<<…>> sporting activity, by its very nature, may affect or delay recovery or the return to work”. Perhaps because of the particularly serious nature of the employee’s conduct, the judgment in question represents an important decision in a matter in which the case law has too often shown a tendency to tolerate conduct that raises doubts as to the employee’s true state of illness
