DLP Insights

Dismissal is lawful even if financial damage suffered by company from disciplined conduct is minor (Camera di Commercio di Spagna in Italia – Enrico De Luca, Raffaele Di Vuolo)

Categories: DLP Insights, Publications, News, Publications | Tag: Dismissal, Court of Cassation

26 Mar 2024

By Order no. 1476 of 15 January 2024, the Italian Court of Cassation has once again ruled on the seriousness of the facts alleged against an employee as the reason underlying the dismissal for just cause under Article 2119 of the Italian Civil Code.

At the end of the three instances of proceedings, the Italian Court of Cassation rejected the appeal brought by the employee, confirming the previous rulings.

The facts of the case

The case originates from an employer’s dismissal of an employee hired as a cook for having unlawfully and repeatedly stolen foodstuffs owned by the employer. In the context of the disciplinary proceedings, the worker had requested the postponement of the meeting scheduled for the hearing for health reasons. Specifically, the worker had produced medical certificates attesting that he was suffering from reactive stress anxiety.

The employee challenged the dismissal before the Court of Santa Maria Capua Vetere which rejected the application brought by the worker under Italian Law no. 92/2012 (so-called ‘Fornero Law’).

The Court of Appeal of Naples, at second instance, noted: (i) that there had been no breach of the right of defence as the medical certificate produced did not evidence a legitimate impediment to the hearing going ahead and, therefore, the request for postponement was merely to delay matters; (ii) that the investigative material acquired in the proceedings had confirmed the accusation made in the disciplinary proceedings, i.e. the repeated and unauthorised misappropriation of cooked food, as well as the worker’s failure to comply with the obligations of trust, loyalty and fairness; (iii) that dismissal was a proportional sanction due to the unlawfulness of the actions and the conduct carried out (which was also a criminal offence).

On these bases, the Court of Appeal judges rejected the worker’s claims.

The Italian Court of Cassation’s decision

The worker appealed to the Italian Court of Cassation on the basis of breach of the provisions of Article 7 of Italian Law no. 300/1970 for disciplinary procedures (so-called ‘Workers’ Charter’) and also alleged errors in the assessment of the evidence concerning the seriousness of the conduct and the lack of proportionality of the sanction.

The Court, in this appeal, reiterated that in cases of disciplinary dismissal, the worker has the right, if he or she so requests, to be heard by the employer, which may be postponed where there are proven and valid reasons that could jeopardise the effective and correct exercise of the same.

In the present case, in the opinion of the Italian Court of Cassation, the conduct complained of (theft of food), although not so serious as to cause significant financial damage and prejudice, constituted a justified reason for dismissal because of its disregard for social values and “conflicted with the standards and values of the legal system existing in the social context […]  although there may have been apparent tolerance on the part of the employer”.

The Italian Court of Cassation, following the assessments carried out on the seriousness of the conduct, then concluded that the modest financial value of the offence “should not refer to the minor nature of the financial damage suffered by the employer, since it is necessary to evaluate the employee’s conduct in terms of the indications it gives with respect to his future conduct, as well as its capacity to cast doubt on the integrity of future performance and to affect the essential element of trust, underlying the employment relationship” (Italian Court of Cassation no. 11806/1997; Italian Court of Cassation no. 19684/2014).

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