Lawful investigation activity of the employer, but with limits

With its judgment No. 15094 of 11 June 2018, the Court of Cassation has stated that the controls carried out through an investigation agency (or security guards) may in no way concern the fulfilment or the breach of the contractual obligation, but must only limit themselves at ascertaining the carrying out of unlawful acts carried out by the employee, even when the employment is carried out outside the company’s premises. In said context, the Court mentions some examples of lawful investigation control, that is when the employee (i) carries out a paid activity in favour of third parties during working time; (ii) carries out specific offences (sells a product or steals the collected amount), or (iii) carries out outside work related activities, thus infringing the competition prohibition (causing damage to the employer). In other words, in order to act lawfully, the investigator “cannot go beyond the limits of the supervision of employment” since such control is directly reserved, pursuant to article 3 of the Workers’ Statute, to the employer or to its own collaborators, whose names and whose duties must be communicated to the employee. Otherwise, the investigation controls ordered are to be deemed unlawful with the corresponding unlawfulness of the resulting dismissal.