Lawful dismissal only at the presence of violent intentional acts

The Court of Cassation, with judgement No. 20211 published on 7 October 2016, issued its ruling on the matter of dismissal for just cause notified to an employee for having participated in a “violent altercation with a colleague then followed by bodily harm”. In this case, the Court of Cassation confirmed the decision of the Court of Appeal of Milan, which deemed unlawful the dismissal and consequently ordered the reinstatement of the employee because the employer failed to prove that the fact that took place was attributed to the employee both in terms of materiality and intentionality of the conduct. In fact, according to the findings of the Court of Appeal, witnesses confirmed that a brawl between the two workers indeed took place, but they issued conflicting statements on how it happened, so conclusive proof on the dynamics of the events could not be obtained. The company criticized the judgement through an appeal arguing that the Court at the time of the counterclaim incorrectly assessed the proof acquired and, given the fact that it was ascertained in the deeds that the altercation indeed occurred, it was the employee’s responsibility to demonstrate the existence of discrimination and that his conduct was in response to an aggression suffered by the hands of another employee. The Court of Cassation, however, rejected the plaintiff’s argument. Indeed, in the opinion of the judges, in the matter of dismissal for just cause, it is the responsibility of the employer to prove the fact attributed to the employee, proving it both in material and intentional terms. The justificatory evidence linked to the employee is then the element that emerges only where previous demonstration of the fault associated to the employee occurred, fault whose proof could not be obtained in this case.