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.
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