Summary dismissal lawful if employee threatens the employer (Il Quotidiano del Lavoro, 4 february 2016)
Article written by Alberto De Luca and Francesca Tugliani
With its judgment no. 1595 of 28 January 2016 the Labour Section of the Cassation Court, returned to ruleon the existence of just cause for dismissal of a employee who had made threats against his employer, even if such threats were not carried out. The case involved a worker employed as a driver who challenged his dismissal for just cause with a letter of 17 May 2006 after the outcome of a disciplinary hearing lodged after he reacted badly (with threats of aggression) to a reprimand he received from the Company’s director for not having immediately reported an accident he had had a few days earlier. Court of Ragusa, called on to decide in first instance, had overturned the dismissal considering it disproportionate to the disputed shortcomings. The consequent reinstatement ruling was denied and both parties decided to appeal. Court of Appel of Catania amended the lower court’s ruling, confirming the legitimacy of the dismissal and sentencing the employee to reimburse the company for the court costs for both cases. In terms of the dismissal, the territorial Court explained that the examined witnesses had confirmed the argument between the employee and the company’s director during which the employee had uttered the disputed threats, revealing that the employee’s conduct met the conditions for serious insubordination and offence to the employer, and as such grounds for damaging the mutual trust as an open and indisputable failure of his duty of diligence. This also took into account the that the applied national collective employment contract expressly includes the disciplinary punishment of dismissal without notice in cases of gross insubordination. The worker appealed the decision in the Cassation Court. The employer, in turn, filed a cross-appeal. As one of the reasons for the appeal in the third instance, the worker cited the violation and false application of article 2119 of the Italian Civil Code, governing just cause for dismissal, and the lack of grounds in the territorial Court’s decision, for having found a violation of the mutual trust in the alleged conduct without taking into account the nature of the employment, the duties assigned to the employee and degree of reliability required of the employee based on these. According to the employee, specifically, the territorial Court had not correctly evaluated the application of the principle of proportionality to the disciplinary measure. The Court of Cassation rejected the reasons for the challenge expressed by the employee , first stating that he had actually after all requested a review of the case on merit, however that review being precluded from the rules governing proceedings which allow the judges only to investigate the legality of the territorial judges’ work. The Court stated, citing the aforesaid case law, that the judgement of the lower court judges can be examined “as long as the dispute is not limited to a generic allegation and merely an opposition, but contains, instead, a specific claim of lack of consistency compared to the “standards”, in keeping with the values of the law, existing in the social reality (Cassation no. 8367/2014 and no. 5095/2011)”. Going one step further, the Court also stated that the motivation adopted by the territorial Court, in terms of the recognition of the existence of just cause for the dismissal, was not censurable under the aspect of violation of the law or lack of grounds. This was based on the fact that the territorial Court had correctly examined the disputed conduct, the context of the relationships between the parties in which it took place, and its relevancy compared to what is required by the disciplinary code, exactly citing the unanimous case law raised by the employee.