The Italian Court of Cassation, in judgment No 31150 of 21 October 2022, in line with its own precedents, clarified that the prior display of the disciplinary code is not necessary for the validity of the disciplinary dismissal of an employee for performing personal activities during working hours, leaving his workstation without permission and using company equipment for which he had not been trained in advance. This is because the conduct alleged breaches legal provisions and, in any event, the worker’s fundamental duties, recognisable as such without the need for specific provision.
Before examining the judgment under review in detail, it is useful to briefly analyse the regulatory provisions applicable to the case as well as the relevant jurisprudential landscape.
Display of the disciplinary code: regulations and case law
As is well known, Article 7 of the Workers’ Statute (Italian Law 300/1970) is the key provision setting out substantive and procedural guarantees to protect the worker in the context of the employer’s exercise of disciplinary power.
The provision places the onus on the employer to prepare a disciplinary code containing the different types of offences, the relevant penalties, and the procedures for challenging them, taking into account national collective bargaining agreements and contracts, if any exist and are applied.
As expressly stipulated in the above statutory provision, the disciplinary code must be displayed in a place accessible to all employees. If the business is divided into several production units, the code must be displayed at each location, facility and autonomous department. Similarly, the code must be displayed if the business operates at third parties’ premises, using them to accommodate materials or persons.
On this point, case law has made it clear that any place in the company where access is available freely and conveniently and for which no special permits or authorisations are required (e.g., personnel management premises or with access limited by badges, etc.) is suitable (Italian Court of Cassation, 3 October 2007, No 20733).
With reference to other equivalent means of disseminating disciplinary regulations, majority case law has held that this is not admissible nor valid, specifying that the employer’s duty to publicise cannot be fulfilled by means other than displaying the code through, for example, distributing the collective agreement and/or company regulations containing the disciplinary code to all employees (Italian Court of Cassation, 28 February 2005, No 5005).
The reasons underlying the above principle were set out clearly by the Joint Divisions of the Italian Court of Cassation in judgment No 1208/1988, according to which: ‘If it is true that the company disciplinary code is a unilateral document with a regulatory function,…and if the addressee of the code is the same indeterminate – also because it is constantly changing – group of workers, it follows that in so far as it has been made known or knowable to the group for which it is intended, it will be effective; without this ability to know about the disciplinary code it is ineffective as legally non-existent. It follows that the legislature’s option choosing displaying, as opposed to other possible dissemination methods of an individual nature (such as, for example, delivering the entire contractual text or an excerpt containing only the provisions on disciplinary matters to employees), is not arbitrary, nor merely advisory, but prescriptive and exclusive, since it finds its rationale in the nature and function to which the document refers.’
The prior and continuous display of the disciplinary code in a place accessible to all workers is, subject to what follows, a necessary condition for lawfully initiating disciplinary proceedings. Hence, it follows that displaying the code after the act complained of renders the sanction unlawful, regardless of whether the employee nevertheless had knowledge of the prohibited conduct (Italian Court of Cassation, 3 May 1997, No 3845; Italian Court of Cassation, 18 May 1989, No 2366; Court of Torre Annunziata, 27 July 2004).
The necessary guaranteed publicity for the disciplinary code by displaying it in a place accessible to all employees does not apply where the dismissal refers to situations which are in breach of fundamental duties related to the employment relationship (Italian Court of Cassation, 1 September 2015, No 17366; Italian Court of Cassation, 26 March 2014, No 7105; Italian Court of Cassation, 7 February 2011, No 2970), or to conduct contrary to the so-called ‘ethical minimum’, since in that case the conduct complained of is immediately apparent to the employee as unlawful (Italian Court of Cassation, 9 July 2021, No 19588).
After all, the Italian Court of Cassation, following a prevailing line of jurisprudence, has held since the mid-1990s that ‘the principle of the peremptory nature of the employee’s offences cannot be understood in the strict sense imposed in criminal law by Article 25, paragraph 2 of the Italian Constitution, a distinction having to be made between unlawful conduct pertaining to company organisation and modes of production, which refer to rules that are for the most part unknown to the general public and are, therefore, knowable only if expressly provided for, and those that are manifestly contrary to generally accepted values, and therefore also unlawful under criminal law, or manifestly contrary to the company’s interests, for which specific inclusion in the disciplinary code is not necessary, since they are in themselves capable of manifesting the “culpa lata”, corresponding to “non intelligere quod omnes intellegunt”’ (Italian Court of Cassation, 26 February 1994, No 1974).
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