Dismissal due to the abusive use of 104 permits and investigations (Il Quotidiano del Lavoro de Il Sole 24 Ore, 25 July 2019 – Alberto De Luca, Debhora Scarano)

The Court of Cassation, by Ruling no. 18411 dated 9 July 2019, returned to analysing the delicate issue relating to the breach of the relationship of trust, following the abuse by the worker of the permits provided for by Law no. 104/1992.

The case originates from the dismissal for just cause inflicted upon an employee for having taken two days’ leave under the provision referred to above, to care for a disabled relative, having emerged, however, from the investigations ordered by the employer that, in accordance with the permits in question, the person concerned had not left his home and, therefore, could not have gone to the separate home of his relative to provide care.

The courts on the matter, both at first instance and on appeal, dismissed the employee’s appeal, considering that the burden of proof had been met by the employer, albeit not by direct evidence but by deduction, on the basis of the combined interpretation of the investigation report – confirmed by the witness – and the oral justifications given by the employee.

In appealing to the Court of Cassation against the decision, the worker complained – amongst other reasons – that the principle of the burden of proof of the existence of a just cause for dismissal was incorrect and misapplied, noting, firstly, that the full proof of the conduct challenged by the employer had not been fulfilled, given that the investigation report revealed that the exact house number corresponding to the person cared for was unknown. He also complained that the Territorial Court had not taken into account the fact that a supplementary investigation had been carried out at a later stage after the imposition of the dismissal. The erroneous assessment of the evidentiary findings, which also arose from the lack of full proof of the disputed fact, led, in the applicant’s view, to a source of uncertainty as to the actual gravity of the conduct and, consequently, as to the proportionality of the adopted measure. The courts of law, by declaring the inadmissibility of all the pleas in law in holding that the logical reasoning of the courts on the matter was free of defects, confirmed the validity of the worker’s expulsion measure, in total acceptance of what was laid down in the ruling on the matter.

Specifically, it is specified by the Supreme Court that the local court had addressed, with logically reasonable grounds, the issue of the abuse of permits under Law No. 104/1992, noting that the investigative report produced by the employer, confirmed by witnesses and strident with respect to what was stated by the worker at the disciplinary hearing, was perfectly capable of fully demonstrating the lack of care for which said worker received permits. It seems appropriate, in relation to the matter of the examination in question, to go back over the jurisprudential guidelines which have emerged with regard to the limits within which the employer can legitimately control the workers, also taking advantage of private investigative agencies, in order to ensure the correct use of the permits referred to in Article 33, paragraph 3, of Law No. 104 of 1992.

Please read the full version of the article here.