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09.052019

Conflictual relationships originating from the employer do not constitute mobbing

With order no. 10043 of 10 April 2019, the Italian Court of Cassation again ruled on the requirements that need to be met for a series of actions taken by an employer to constitute mobbing, in the case reported by a manager who had declared himself to have been the victim of behaviour presented as prejudicial to his position (specifically: unjustified change of room, delays in responses to his requests for organisational clarifications, or a failure to respond to such requests, and a lack of guidance).

In this case, the manager initially saw his claims of mobbing and for consequent compensation for non-financial damages accepted, but they were then rejected on appeal.

In particular, the Court of Appeal had deemed that there was not sufficient evidence to suggest that there had been an unequivocal strategy of mobbing against the manager, and therefore rejected the relative claim for compensation. Nevertheless, the Court of Appeal had in any case recognized the manager’s right to be compensated for damages due to liability under Article 2087 of the Italian Civil Code, with reference to a single episode in which the manager had been the recipient of offensive statements from the company’s general manager, with the manager also being able to provide irrefutable evidence of the offence incurred, with a consequent prejudicial effect on his health, and the causal link between the conduct and the prejudice (which was also confirmed by the court-appointed expert’s medical witness report, which was included the records of the case).

Following the judgment on appeal, the manager filed an appeal with the Italian Court of Cassation, arguing that the appeal judges had failed to examine some decisive facts relating to the dispute.

The Court of Cassation also rejected the manager’s appeal, and stressed that the overall assessment of the facts had been clear and convincing, given that the Court of Appeal had justified its decision in a coherent manner, with no flaws in its logic or arguments. In this regard, the Court of Cassation gave no importance to the fact that the appeal judges had not considered “tense and conflictive relations between the partied” in their qualification of the events in question, since they were not able to demonstrate any intent to persecute the manager.

It should be noted that the principle expressed by the Court of Cassation is partially in contrast with another recent ruling which, conversely, recognized that criticism from the employer could be deemed to constitute mobbing (Court of Cassation judgment no. 23923/2009).

That said, from an examination of the general guidelines normally shared by the Court of Cassation, it is clear that for a case of mobbing to be established there needs to have been be not just a single harmful act or multiple unrelated acts, but rather the reiteration of a number of acts and attitudes, even if they have no criminal significance, which converge to express the perpetrator’s hostility towards the victim and their effective ability to humiliate and isolate the employee in his/her work environment. In this specific case, such facts had not been correctly alleged or proven.

In conclusion, with the order mentioned above, the Court of Cassation confirmed the need for the employee, with whom the burden of proof lies, to demonstrate the alleged conduct that constituted mobbing and present characterizing events (which must be continual and decisive) that irrefutably represent persecutory intent.