Legitimacy of dismissals for improper use of leaves as per law 104

With judgment no. 4670 of 18 February 2019, the Court of Cassation maintained that the controls requested by the employers of an investigation agency are legitimate if the investigation concerns the control of behaviour that could be criminally relevant or fraudulent actions capable of damaging the employer.

The facts

A company active in the food industry had found out through a private investigation agency that on 22, 23 and 24 December 2014 and on 22 and 23 January 2015 and 5 February 2015, one of its own employees, instead of assisting a family member in relation to whom the worker had requested use of the leave allowed under Article 33 of Law no. 104/1992, had instead been busy with other personal activities (in places of business and other places, in any case not the one in which the assistance activities should have taken place).

The company had therefore started a disciplinary procedure against the employee, at the end of which it had served a notice of termination from employment for cause.

The worker had applied to the labour court for a declaration of unlawfulness of the dismissal in question and application of all the legal consequences resulting therefrom.

Even though the Court had excluded from the disciplinary measure the days of 22, 23 and 24 December given that the company had decided to suspend all work activities during the Christmas Holidays, it rejected the claim of the worker, declaring the dismissal legitimate.

The worker then filed a complaint before the Court of Appeal having jurisdiction pursuant to Law no. 92 of 2012, claiming also that the investigation agency was not licensed to carry out the investigations.

The Court of Appeal had upheld the judgment of the court of first instance and, in particular, had declared the dismissal legitimate, on the basis that the investigations aimed at the ascertainment of an improper use of the leaves pursuant to Law no. 104/1992 did not concern the performance of work activities. This is so because the investigations had been carried out during non-working hours and during suspension of the primary obligation to perform.

The court therefore ruled that the findings of the investigations and the first-hand testimony of the investigators were admissible, and that the argument of the agency not holding a license issued by the Prefecture had come too late.

In conclusion, the Court found that the worker had misused the right under Article 33 of Law no. 104/1992, betraying the confidence placed in the employee and constituting such a reproachable behaviour that the measure adopted was justified, even in the absence of other previous disciplinary measures.

The worker therefore filed an appeal before the Court of Cassation against the judgment of the Court of Appeal.

The ruling of the Court

The Court of Cassation upheld the decision of the Court of Appeal having jurisdiction and:

• on the one hand, highlighted the fact that the objection raised by the worker that the investigation agency had no formal license had come late, and
• on the other hand, making reference to a previous approach of the court, remarked that the controls carried out on behalf of a company by the investigation agencies, regarding the activities of a worker and even outside the premises of the company, are not precluded under Article 2 and 3 of the Workers’ Statute. It is understood that those controls should not concern the performance of work activities, but be limited to the verification of the occurrence of behaviour that could be criminally relevant or fraudulent actions, i.e. a source of damage to the employer (see Court of Cassation, no. 22196 of 12 September 2018; Court of Cassation no. 15094 of 11 June 2018; Court of Cassation no. 12810 of 22 May 2017).

According to the Court of Cassation, the activities of the investigation agencies – in order to be lawful – should not extend to the work activities in the strictest sense. Indeed, under Article 3 of the Workers’ Statute, this is the direct responsibility of the employer and its collaborators. Therefore, the actions in question are justified not only because of the occurred wrongdoing and of the need to assess its nature, but also in the event of a mere suspicion or hypothesis that wrongdoings are being committed (see Court of Cassation no. 3590 of 14 February 2011; Court of Cassation no. 848 of 20 January 2015).

According to the Court, neither the principle of good faith nor the prohibition of remote controls referred to in Article 4 of the Workers’ Statute prevent the above, given that the employer can autonomously decide how and when to carry out the controls, including secretive controls, and given that the worker is obliged to act diligently while the employment contract is in force (see Court of Cassation no. 16196, 10 July 2009). This is so because the conduct of the worker:

• has proven to be contrary to good faith, unjustly depriving the employer of his/her work in violation of the confidence placed in him/her and
• in regard to the benefit paid by the Welfare Agency, leads to an undue payment and a diversion of the welfare assistance.

Conclusions

In brief, it follows from the judgment at hand that the employer can legitimately hire an investigation agency to verify if during the periods of leave from work, on grounds of assistance to a family member, the worker performs other activities and, in the event of evidence in this sense, it can legitimately proceed to the dismissal of the worker.

Other News:

https://www.delucapartners.it/en/news/2017/employers-can-hire-a-private-investigator-to-make-sure-that-the-leaves-envisaged-in-law-no-10492-are-not-improperly-used/

https://www.delucapartners.it/en/news/2018/ascertainment-of-breaches-of-discipline-by-private-detectives/