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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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.
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.
