Unlawful dismissal for not having objected a criminal offence to a subordinate

With its judgement No. 8407 lodged on 5 April 2018, the Court of Cassation declared the disciplinary dismissal notified to a female employee unlawful. On two occasions, she failed to stop another employee, who was a subordinate, from stealing pellet bags from the employer’s outlet, just limiting herself to warn her managers on both occasions. In the case at issue and during the first episode, the employee had warned her own head of sector – who, however, did not give her any instructions whatsoever as to the measures to be taken – and, on the occasion of the second episode, she had warned the branch’s assistant. According to the company, instead of reporting the facts to her own managers, the employee should have verbally objected the perpetration of the criminal offence to her own subordinate, in compliance with the obligations of fairness, good faith and loyalty towards the employer. By upholding the decision of the Court of Appeal having territorial jurisdiction, the Court of Cassation stated the following principle of law: “in so far as dismissal for disciplinary reasons is concerned, even if the rules and regulations under the collective bargaining agreements foresee a certain behaviour as just cause or justified subjective grounds for withdrawal, the judge vested with the right to challenge the lawfulness of the dismissal must in any event check the actual seriousness of the behaviour with which the employee has been charged” (Cass. No. 16095/2013; Cass. No. 21633/2013). The Court of Cassation also clarified that “(…) the infliction of the highest disciplinary penalty is solely justified upon a considerable breach of the contractual obligations, or even such as not to allow the continuation, even temporary, of the employment”. By abiding by these principles, the Court of Cassation deemed that the employee had acted correctly, therefore declaring the employer’s withdrawal from the employment to be unlawful. Consequently, prior to expediting any dismissal, it is always necessary to check whether the seriousness of the behaviour – even if sanctioned by the collective bargaining agreement – is such as to justify the withdrawal.