The Court of Cassation, with its ruling no. 25731 of 22 September 2021, stated that, in the absence of prior information under Article 4, para. 3, of Law no. 300/1970, the employer cannot use the data found in a company chat room where an employee bad mouths their superiors and colleagues, for disciplinary purposes.
An employee was dismissed for just cause because a conversation was found where the employee while chatting with another colleague, had used heavily offensive words towards a hierarchical superior and some other colleagues. The conversation was found during a check carried out by the IT staff to verify if there was company data to be kept, before closing the chat.
The Court of First Instance, first, and then the Court of Appeal, held that the dismissal for just cause was unlawful.
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Article 4 of Law 300/1970 provides as follows:
1. “Audiovisual equipment and other tools which provide for the possibility of remote control of workers’ activities may be used exclusively for organisational and production requirements, for work safety and the protection of company assets, and may be installed subject to a collective agreement entered into by the unitary trade union representatives or company trade union representatives. (…)”
2. The provision referred to in paragraph 1 shall not apply to the tools used by the worker to perform work (…).
3. The information collected under paragraphs 1 and 2 may be used for all purposes related to the employment relationship provided that the worker is given adequate information on how to use the tools and checks carried out and under Legislative Decree no. 196 of 30 June 2003 .”
The latter paragraph specifies the need to inform employees of the tools use and monitoring methods, especially if the tools installed for the needs referred to in the first paragraph or assigned to perform the work referred to in paragraph 2 include any remote monitoring of the workers’ activity. This is so that the data collected is used for purposes related to the employment relationship, including any disciplinary measures.
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The Court of Appeal of Milan found that the company’s access to the chat room was unlawful, as it was carried out in breach of the above paragraph 3, since the employer had failed to provide the necessary timely and adequate information to employees on the monitoring methods.
The losing company appealed to the Court of Cassation.
The Court of Cassation, referring to the arguments put forward by the Court of Appeal of Milan, stated that the company’s access to the company chat room was unlawful because it was carried out in violation of Art. 4, para. 3, Law 300/1970. According to the Court, the company chat room is to be qualified as a work tool within the meaning of paragraph 2 of the above Article 4. Chat room monitoring could only have taken place by providing workers with “adequate information on how to use it.“
In this case, there were company regulations which provided for the possibility of carrying out checks on the chat during maintenance, updating or to obtain useful data for cost planning. However, no prior and adequate information had been provided to the employees on the monitoring due to the chat closure and its progressive abandonment, nor on the tool monitoring methods. On the contrary, the communication about the chat service interruption was sent when the checks had already been carried out.
In confirming what was stated by the local court, the Supreme Court held that the material collected could not be used by the employer. This is because the employee’s conversations constituted a form of “private confidential correspondence, which requires protection of the freedom and secrecy of communications under Art. 15 of the Constitution.”
The confidential content of the conversations was also apparent from the fact that the chat room could only be accessed using a personal password and the messages sent could only be read by the recipients, “with the result that access to the chat content is precluded to outsiders and their disclosure and use is not permitted.”
The Court “ruled out a disparaging intent” by the employee, holding that “the e-mails content and the expressions used constituted an outburst by the sender, intended to be read only by the recipient, without any unlawfulness and being a free expression of thought in a private conversation.”
Based on the above, in confirming the decision of the Court of Appeal of Milan, the Court of Cassation held that there was no just cause for dismissal, ordering the employer company to reinstate the employee in her place of work and pay her damages of seven months’ salary.
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