The ethical minimum rule as insurmountable limit of trade union freedom

With its judgment No. 14527 of 6 June 2018, the Court of Cassation has quashed the decision of the Court of Appeal having territorial jurisdiction which, by reversing the decision of the first instance judge, had declared the unlawfulness of the dismissal for cause served on five employees who had staged the suicide and the funeral of the Managing Director of the employer, in addition to having charged the latter Managing Director with the suicide of other employees. In particular, in the Court of Appeal’s opinion there was no cause for dismissal whatsoever, since the employees had not caused any serious moral or material damage whatsoever to the employer with their own behaviour, much less going beyond the limits of substantial and formal moderation in exercising the lawful right of criticism. Instead, the Court of Cassation has laid stress on the fact that, in the case at issue, the employees’ behaviour had gone beyond the limit of formal moderation, thus infringing the so-called ethical minimum, namely, those duties safeguarding ordinary, democratic civil life in common. Furthermore, the Court of Cassation has stressed that the aforesaid employees, with their behaviour, even if within the lawful harshness of constitutionally protected trade union dialectics, had caused damage to the honour, to the reputation and to the dignity of the Managing Director, by actually finally harming the fiduciary bond underlying the relevant employment. Well then, the Court of Cassation has laid stress on a clear lack of balance between the two conflicting interests at stake: on one side, that of the individual having been criticised in the protection of the human being and, on the other side, that opposed of the author of the criticism (even as a satire) in the free expression of thought.