The Court of Cassation – with judgment no. 21621 filed on 4 September 2018, has ruled that a disciplinary dismissal for circumstances established by a private detective is not lawful if such dismissal is based on facts occurred within the context of the performance of the job duties and connected to the latter. In the case at hand, a worker had been responsible for tampering with the attendance sheet, in order to conceal his absence from work. On discovery of the worker’s conduct, by way of a private investigation agency, the company activated against him a disciplinary procedure, which ended with a dismissal for cause. The worker appealed against the measure and the court ruled that the company conduct was lawful. Called upon the issue, the Court of Cassation reversed the outcome of the litigation. Having examined the documentation of the case, the Court of Cassation ruled that any circumstance relating to the correct performance of job duties must be assessed by the employer or persons within the company organization. In any case, this does not preclude the possibility for a detective to be actually hired to establish the existence of conducts legitimising the disciplinary measures. However, according to the Court of Cassation, “the control carried out by security guards or investigation agencies cannot concern under any circumstance the fulfilment or non-fulfilment of the contractual obligation to perform one’s own duties” since the investigation “must be limited to the worker’s breaches that are not related to a mere fulfilment of the obligation.” In other words, the hiring of an investigation agency is justified in the case of wrongdoings and the need to establish their nature, even if there is suspicion or a mere supposition that the wrongdoings are being committed.
