Legitimate dismissal of Workers’ Safety Representative (RLS) found to be using daily trade union leave for private purposes

With its order no. 17287 of 27 May 2022, the Court of Cassation considered the dismissal for just cause of the Workers’ Safety Representative (“RLS“) legitimate. The RLS had used union (daily) leave for more than three continuous months, for purposes other than those for which they had been provided and granted, or for personal purposes. With this order, the Court of Cassation deals with the delicate issue of the allocation of the burden of proof underlying the dismissal.

Facts of the case

In reforming the first instance ruling, the Court of Appeal, declared that a dismissal announced to an employee following an employer-investigation conducted while the employee was on leave related to the assignment under art. 50 Legislative Decree no. 81/2008 was legitimate. The results of the investigation, in the Court’s opinion, had shown the objective incompatibility of most of the activities carried out by the employee with those proper to his assignment. The employee had been seen repeatedly going to various city bars, taking walks along the promenade, entering businesses and attending to family duties.

The worker appealed to the Court of Cassation against the decision of the local court, citing as his sole ground of appeal the breach and misapplication of art. 2697 of the Italian Civil Code. The employee criticised the ruling which required him to prove the groundlessness of the contested charges, contrary to the established principle that it is the employer who must prove the existence of the just cause or subjective reason for dismissal.

According to the employee, such proof could not have been obtained based on the findings of an investigative report, since it was not representative of the tasks he carried out.

The Supreme Court of Cassation’s ruling

The Supreme Court, in rejecting the employee’s appeal, confirmed the correctness of the local court’s work. It found the contested ruling did not reveal a subversion of the burden of proof on the issue of just cause for dismissal.

In the Court of Cassation’s opinion, the local court, after analytically examining the findings in the file and those resulting from the private investigator’s examination, correctly held that it was the employee’s burden to offer elements capable of undermining that picture, a burden which was not fulfilled.

In other words, it was up to the worker to prove that he had been engaged in the performance of his duties as Workers’ Safety Representative. In the Court of Cassation’s opinion, this ruled out the alleged breach and false application of art. 2697 of the Italian Civil Code as a residual rule of judgement. As a result, the lack of elements suitable for ascertaining the existence of the right in dispute, within the preliminary investigation results, determined the loss of the party burdened with proving the related facts.

  Other related insights:

• The RSU may decide how to allocate paid leave but not to concentrate it all on one member
• Full matching between the disputed charge and the reasons for the disciplinary dismissal is required