Clock-on scam: plea bargaining has binding effect in civil dismissal proceedings (Norme & Tributi Plus Diritto – Il Sole 24 Ore, 4 August 2021 – Alberto De Luca, Alessandra Zilla)

The Court of Cassation, in ruling no. 20560 published on 19 July 2021 confirmed the facts subject of a plea bargain in a criminal case must be established (with the effect of res judicata) to any pending civil proceedings concerning the same findings. The Supreme Court’s ruling stems from the lawful dismissal for misconduct by the Ministry of Justice of a court clerk for having – together with other colleagues – falsely certified his presence at work.

The parties were first involved in a criminal trial that ended with a plea bargain. Later the employee appeared before the Employment Tribunal to the appeal against the employment termination. In the employment proceedings, the Court of Appeal of Milan, overturned the judgement of the Court of Lodi which had initially upheld the employee’s appeal, ruled on the legitimacy of the disciplinary dismissal imposed on the employee. It found (based on the plea bargain) that an unlawful system was operating at the judicial office in which certain employees covered for each other’s tardiness and absences by abusing the clock-in badge system.

The seriousness of the conduct was further increased by the fact that the appellant was the chief registrar. The employee challenged the judgement handed down by the local Court on several grounds, including the alleged infringement of Articles 115 and 2697 of the Code of Civil Procedure about availability and burden of proof, since the Court of Appeal based its belief on facts established in the criminal proceedings. In the employee’s view, the plea-bargaining judgement could not have been used as a basis for the employment judge’s finding because it came after the dismissal and was incapable of providing elements for assessing the actual existence of the act and its seriousness. The grounds of appeal were rejected by the Supreme Court, which confirmed the dismissal legitimacy.

Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.