On 6 April 2020, the Supreme Court of Cassation handed down judgment No. 7703 on the legitimacy of a dismissal for just cause based on irregularities found in the reimbursement of expenses declared by a worker, where those irregularities are formally disputed after one year had elapsed. Called upon to rule on the need to safeguard the principles of immediacy of a criminal complaint and of the good faith reliance of the worker in relation to the irrelevance, for disciplinary purposes, of fact allegations which are formally made after a significant period of time has elapsed, the Supreme Court held that those principles are not infringed if specific fact circumstances underlying the dismissal came to the employer’s attention only a later stage, and the employee acted fraudulently in relation to those facts.
The facts
In the present case, irregularities in the reimbursement of expenses had emerged following employer checks related to a period of approximately 13 months, which had also involved the obtaining of information from the businesses where the expenses were incurred. In his formal complaint, the employer had given special significance to an invoice from a particular hotel which he received a full year after the worker’s self declaration of the expenses incurred there. The invoice revealed an inconsistency between the amounts imputed and the various items declared by the worker, namely that an undeclared companion also stayed over.
During the trial on the merits, the Ancona Court of Appeal – upholding the Pesaro Court’s decision – rejected the employee’s application against the employer, for a declaration that the disciplinary dismissal was illegitimate.
More specifically, the Court had held that “the bond of trust was breached, thus justifying the dismissal” and it did not consider that the “Company mechanism for checking travelling expenses caused a delay in making the complaint or breached the bond of trust relied on by the employee in relation to the irrelevance of the conduct in question for disciplinary purposes”.
The worker appealed against this lower court decision to the Supreme Court of Cassation, advancing as the first ground of appeal the infringement and misapplication of Article 7 of Law No. 300/1970 in relation to the principle of immediacy of the disciplinary complaint, and advancing as the second ground of appeal the infringement and misapplication of Articles 1175 and 1375 of the Italian Civil Code in relation to the failure to properly safeguard the principle of good faith reliance, i.e. the worker’s entitlement to rely on the irrelevancy for disciplinary purposes of conduct that is not formally complained of in good time.
The Supreme Court of Cassation’s decision
Rejecting the appeal and confirming the legitimacy of the dismissal for just cause, the Supreme Court of Cassation held that “the principle of good faith in the implementation of the contract was properly applied” in this case. This is because the worker would have been fully aware of the disciplinary relevance of the conduct he was accused of, because “such conduct formed the subject matter of different disciplinary proceedings by the Company” against him, in relation to a period prior to the that concerned by the new investigation. In the Court’s view this circumstance would, moreover, have made a subsequent more extensive and painstaking assessment even more reasonable.
Based on these elements, the Supreme Court of Cassation held that the local Court’s interpretation was correct, in relation to “the legitimacy of the subsequent checks which extended over 13 months, and the irrelevancy – for purposes of assessing whether or not the formal complaint was made in good time – of the time taken to conduct this particular type of investigation”. In support of its view that the formal complaint was made in good time, moreover, the Court emphasised the fact that the final item obtained by the investigation (namely, the copy of the invoice issued by a London hotel relating to the applicant’s accommodation expenses) was received by the Company on 3 March 2015, and the formal disciplinary complaint was sent forward on the following 7 April.
Finally, in the Court’s view, there was just cause in this case, as the invoice received by the Company “pointed to the fraudulent nature of the applicant’s conduct: in his self-declaration related to the stay, […] he had illegitimately concealed – by altering the amounts imputed to the various items declared – the presence of a companion as well as the fact that the Company was unknowingly made to cover that companion’s costs”.
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This judgment makes clear that, in the context of a disciplinary procedure, the principle that an infringement should be formally notified/complained about in good time takes on a relative connotation, and must be compatible with the length of time necessary in order for the relevant facts to be ascertained and verified. Accordingly, a formal complaint over a disciplinary infringement should not be considered to be delayed, or to breach the worker’s good faith reliance, if specific factual circumstances exist (in this case the hotel invoice) which came to the Company’s attention after a lapse of time, in circumstances where the worker acted fraudulently in relation to those factual circumstances.
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