Generalized and arranged ex-ante remote supervision: inadmissible evidence

The Court of Cassation, with judgement No. 19922 dated 5 October 2016, confirmed unlawful the dismissal for just cause of an employee in charge of private supervisory activity, who failed to make all the inspections he was entrusted. The disciplinary offence was ascertained by the employer on the basis of data collected through the GPS satellite system installed in the vehicle used by the employee and equipped with the Patrol Manager System. As sustained by the Territorial Court, the Supreme Court of Cassation affirmed the inadmissibility of the evidence provided by the employer given that according to the union agreements signed – since the two systems represented a form of remote supervision, and therefore fell within the scope of Article 4 of the Workers’ Statute – expressly established that tools for the remote supervision of workers could not be used. Nor, in the opinion of the Court, it can be assumed, as argued by the employer, that it represented a form of defensive supervision since “it is not possible to consider ‘defensive’ generalized supervision mechanisms and controls arranged even before the occurrence of any suspicion“, that is ex-ante with respect to the rise of suspicion on the commission of the disciplinary offence. The aforementioned law principle was used by the Supreme Court of Cassation on the basis of the provisions contained in Article 4 of the Workers’ Statute in the version preceding the new implemented version contained in the Jobs Act. According to the new formulation of the rule, in fact, it would be possible to use as sources of evidence also generalized supervision systems arranged ex-ante within the limits referred to in paragraphs 1 and 2 and in compliance with the conditions referred to in paragraph 3 of Article 4 of the Workers’ Statute.