The Labour Division of the Milan Court with judgement no. 4703 dated 20 February 2017, ruled on the appeal pursuant to article 1, paragraph 48 and following of Law 92/2012 filed by an employee against dismissal for just cause ordered by one of our client Companies for having sold on the Internet, under false name, products of such company. The Company decided that such measure was necessary after the conclusion of an investigation conducted by an authorized investigative agency. The plaintiff, both during the reasoning and appeal stages, failed to deny the alleged facts or to provide any rebuttal of them, declaring that he/she was only obligated to make statements “to the investigating authority.” In the case in question, the Presiding Judge, first, officially ruled on the claim for non-pecuniary damage reimbursement made by the employee, stating that with the Fornero appeal “claims other than those referred to in paragraph 47 (of article 1 of Law 92/2012) cannot be made” and that “therefore, any other additional claim, based on other causes of action (such as the one made here, based on personal damage), must be deemed inadmissible”. In addition, the Judge, making reference to numerous previous case law, rejected the plaintiff’s request to exclude the document submitted by the Company on the investigative report, because “an employer can directly control, through its own hierarchical structure or even through external personnel (such as an investigative agency, as in this case) the fulfilment of work performance and therefore verify specific shortcomings of employees that may have already occurred or that are in progress; this regardless of the monitoring method adopted, which can also be through undisclosed means”. Finally, on the existence of the fact at the base of a disciplinary dispute, the Judge stated that the plaintiff “even when explaining the reasons [for the conduct] after the disciplinary dispute, failed to provide any information actually useful to show his/her non-involvement in the facts (…)” stating that “it would have been sufficient to mention the lawful origin of the items to avoid any kind of complication”. In this regard, the Judge also remarked that “even during today’s hearing [Editor’s note: and on occasion of the first employee’s hearing] the employee failed to bring forth an adequate objection in support of his/her main assertions, namely the non-existence of the contested fact.” The Judge thus reached the conclusion that “the cunning and fraudulent behaviour of the employee certainly brought forth an irremediable rift of the trust relationship, which fully justifies the employer’s termination” fully rejecting the appeal and ordering the plaintiff to pay the legal costs.
