In Provision No. 288 of May 21, 2025, the Italian Data Protection Authority fined an Italian company €420,000 for unlawful processing of an employee’s personal data later used to justify her dismissal.
The employee filed a complaint against the company, alleging improper use of her personal data extracted from her “Facebook” profile, the “Messenger” app, and certain chats from the “WhatsApp” platform. These data, made known to the company, were used to support two separate disciplinary notices.
In the first notice, dated February 16, 2024, the company quoted the contents of some comments made by the complainant on her Facebook profile, including quoted excerpts and descriptions of certain photos. In the second notice, dated March 21, 2024, it referred to a conversation on Messenger between the complainant and a third party (not employed by the company) who forwarded the conversation to the company via WhatsApp, including quoted excerpts. This second notice also included excerpts from a WhatsApp message the complainant sent to some colleagues on February 22, 2024.
Referring to Article 8 of Law No. 300/1970 (the Italian Workers’ Statute), which prohibits the employer from carrying out investigations – including via third parties – into an employee’s political, religious, or trade union opinions, as well as facts irrelevant to assessing the employee’s professional aptitude, the company claimed it had played no active role in collecting the data. It argued that the information had been reported to it and could therefore be used for disciplinary purposes, as this would not constitute a prohibited investigation under the Workers’ Statute.
The Italian Data Protection Authority used the occasion to recall that:
– The legal system protects the freedom and confidentiality of communications, recognized as fundamental rights, and any limitation is allowed only “by reasoned decision of the judicial authority, in accordance with the law” (Article 15 of the Constitution). This presumption of confidentiality, as clarified by the Constitutional Court, extends to all communication tools made available by technological evolution. (Lawfulness principle)
– The mere publication of data on publicly accessible platforms, such as social networks, does not imply that the data subject has given general consent for the free use of that data for any purpose. A specific legal basis is required for any processing other than the original purpose. (Purpose limitation principle)
– The need for data processing based on legitimate interest – the justification cited by the company in its defense – must also be evaluated under the principle of minimization. The data controller must verify that “the legitimate interest pursued cannot reasonably be achieved through less harmful means for the fundamental rights of data subjects, particularly their right to privacy”. In this case, the company failed to demonstrate that it had assessed the impact of the processing on the employee’s rights or considered less intrusive alternatives, even though the disciplinary measures could have been based on other elements. (Data minimization principle)
The Authority clarified that while it is not tasked with evaluating the disciplinary facts themselves, it is the employer – as the data controller – who must assess not only the lawfulness but also the adequacy, relevance, and proportionality of the data processing to be carried out. The Authority found numerous violations by the company, which, “once it became aware that the transmitted data concerned private communications and comments on a closed Facebook profile, […] should have refrained from using them.”
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Analysis and Implications of Constitutional Court Ruling No. 111/2025, Which Also Introduces a New Factual Variable in Dismissal Litigation: the Employee’s Psycho-Physical Health Status
With ruling No. 111/2025, filed on 18 July 2025, the Constitutional Court delivered a significant decision in labor law, declaring the partial constitutional illegitimacy of Article 6, first paragraph, of Law No. 604 of 15 July 1966. The Court found unconstitutional the provision to the extent that it does not allow a worker who is in a state of incapacity of mind at the time of receiving the dismissal notice—or during the 60-day period for extrajudicial challenge—to be exempted from the obligation of prior extrajudicial contestation and to instead challenge the dismissal directly through judicial proceedings (or by requesting conciliation or arbitration) within 240 days from the communication of the dismissal.
To understand the scope of the Constitutional Court’s ruling, it is necessary to outline the regulatory and jurisprudential context in which it is situated.
The core of the legislation is found in Article 6 of Law No. 604 of 15 July 1966. In its current form—shaped by amendments first introduced by Article 32 of Law No. 183/2010 and later by Article 1, paragraph 38, of Law No. 92/2012—the provision structures dismissal challenges as a progressive process, marked by two temporal thresholds:
First Term (Extrajudicial Challenge): The employee must contest the dismissal “under penalty of forfeiture within sixty days of receiving written notice”. The challenge may be made “through any written act, including extrajudicial, suitable to make the employee’s intention known”.
Second Term (Judicial Action): The extrajudicial challenge is considered “ineffective if not followed, within the subsequent one hundred and eighty days, by filing a claim with the labor court registry or by notifying the other party of a request for conciliation or arbitration”.
Failure to comply with even a single one of these deadlines results in the forfeiture of the right to challenge the dismissal and, consequently, in the stabilization of its effects, preventing the employee from seeking either reinstatement or the merely compensatory remedies provided by the special legislation.
The classification of the term as a “forfeiture period” is of crucial importance. Pursuant to Article 2964 of the Italian Civil Code, forfeiture is neither subject to interruption nor suspension, unless otherwise provided. This general principle renders the dismissal challenge period impervious to personal circumstances that would normally suspend the running of time, such as illness. The rationale behind this rule is to require the exercise of a right within a predetermined and brief timeframe, thereby crystallizing an otherwise uncertain legal situation.
The 60-day period (dies a quo) begins from the “receipt” of the dismissal notice. Since dismissal is a unilateral communicative act, its effectiveness and the commencement of the related deadlines are governed by Article 1335 of the Civil Code, which establishes a presumption of knowledge:
“A proposal, acceptance, revocation, or any other declaration addressed to a specific person is deemed known at the moment it reaches the recipient’s address, unless the recipient proves that, without fault, they were unable to have knowledge of it.”
It is precisely the interpretation of this provision that underpins the established jurisprudential orientation.
Indeed, the Supreme Court’s rulings, dating back to early decisions such as Cass. no. 5563 of 1982, have interpreted these rules in a rigorous and formalistic manner, prioritizing legal certainty.
The dominant approach follows the so-called “theory of receipt” or “theory of knowability”. Under this interpretation, what matters for the effectiveness of the act is not the actual knowledge of the recipient, but its mere knowability, which is presumed at the moment the act reaches the recipient’s address.
As a direct consequence, the rebuttal allowed under Article 1335 c.c. (“impossibility of knowledge without fault”) cannot relate to the recipient’s subjective conditions.
As highlighted by the United Sections in the ordinance referring the matter to the Constitutional Court:
“The evidence suitable to overcome the presumption must therefore concern circumstances not related to the recipient’s subjective conditions but to external and objective factors, concerning the connection between the individual and the place of delivery, sufficient to exclude the knowability of the act” (Cass., United Sections, ordinance of 5 September 2024, registered as no. 202/2024).
Therefore, the employee’s incapacity to understand and act (natural incapacity) – being purely subjective and internal – has consistently been considered irrelevant for the running of the forfeiture period. The period starts inexorably from the moment the dismissal letter is delivered, regardless of whether the employee is able to comprehend its content or respond.
The United Sections further excluded the possibility of protecting the incapacitated employee under Article 428 c.c., which governs the annulment of acts carried out by persons lacking capacity. The rationale is that Article 428 c.c. applies to commissive acts (e.g., signing a contract). The failure to challenge a dismissal, instead, is an omissive conduct, a “failure to act” in defense of one’s rights, to which the rule cannot extend.
Jurisprudence has always justified this strict interpretation by balancing the interests at stake. On one side, there is the employee’s right to job stability; on the other, the employer’s interest in continuity and stability of business management. Imposing a short forfeiture period serves this latter interest, preventing organizational decisions from remaining in uncertainty for an extended period. Forfeiture, in this perspective, is not a sanction for inaction, but the objective consequence of failing to meet a procedural obligation designed to protect economic relationships.
In summary, the legal and jurisprudential framework can be described as “rigid”, built on three pillars:
It is precisely against the rigidity of this consolidated system that the ordinance of the United Sections of the Supreme Court is directed. While acknowledging its internal coherence and purpose of certainty, the referring Court questioned its compatibility with fundamental constitutional principles (reasonableness, equality, right to work, right to defense, and right to health) when applied to extreme situations of absolute and blameless incapacity, where the balance of interests is manifestly disproportionate against the employee.
The constitutional question raised by the United Sections of the Supreme Court
The Constitutional Court’s ruling stems from a question raised by the United Sections of the Supreme Court in a case involving an employee dismissed while suffering from a severe illness, leaving her naturally incapable at the time of receipt of the dismissal and during the 60-day extrajudicial challenge period.
The referring judge highlighted that the rigid application of the forfeiture period, insensitive to the employee’s subjective condition, could violate multiple constitutional provisions, including:
The Supreme Court therefore requested the Constitutional Court to issue an additive ruling, making the forfeiture period run not from the receipt of the dismissal, but from the moment the employee regains capacity to understand and act.
Continue reading the full version published at Il Modulo 24 Contenzioso Lavoro.
In its recent Judgment No. 2385 of June 5, 2025, the Court of first instance of Catania reaffirmed that, in cases challenging the validity of a dismissal allegedly communicated orally, the burden of proof lies with the employee, in accordance with the general principles set out in Article 2697 of the Italian Civil Code. The employee must demonstrate the constitutive fact of the claim – that is, that the termination of the employment relationship was the result of the employer’s intent to dismiss the worker.
The case examined by the Court of Catania involved a dispute raised by a Healthcare Assistant (i.e. “OSS”) against a social cooperative. The employee claimed to have been dismissed verbally after being accused of mistreating a patient. According to the employee’s account, the cooperative’s legal representative allegedly told him to “leave” without issuing any formal charge, in breach of Article 7 of the Workers’ Statute (Law No. 300/1970).
The employee asked the court to declare the dismissal null and ineffective, to order reinstatement, and to require the company to pay back and future wages and social security contributions.
The employer, though entering the case late, entirely denied the employee’s version of events. It claimed no dismissal had ever occurred – neither verbal nor written – and that the employee had voluntarily walked off the job after a meeting in which his alleged behavior was discussed. The company argued that the employment relationship was still ongoing, noting that no formal notice of termination had been submitted to the relevant authorities.
Thus, the central legal issue before the Court was the burden of proof regarding the oral dismissal.
The Court of Catania dismissed the employee’s claim, finding that the alleged oral dismissal was not proven.
The decision is based on Article 2697 of the Italian Civil Code, which places the burden of proof on the party asserting the claim. In this case, the judge stated that the employee must prove not just that the employment ended, but that it was due to the employer’s intent to terminate, either explicitly or through conclusive conduct.
The Court highlighted that merely ceasing work is a “neutral fact with multiple interpretations”, which could stem from dismissal, resignation, or mutual agreement. Citing established case law from the Supreme Court (e.g., Judgments No. 3822/2019, No. 13195/2019, and No. 149/2021), the judge stressed that the employee must prove an “employer’s act consciously aimed at removing the worker from the production environment”.
In this case, the Court found that the employee failed to meet this burden of proof, citing:
Ultimately, due to this “evidentiary uncertainty”, the Court rejected the claim. Legal costs were fully offset between the parties due to the case’s complexity and the nature of the parties involved.nale ha rigettato la domanda del lavoratore che non era riuscito a dimostrare il fatto costitutivo della sua pretesa, ossia l’estromissione per volontà datoriale. Le spese di lite sono state integralmente compensate tra le parti in ragione della peculiarità della fattispecie e della natura delle parti in causa.
With Judgment No. 25167 of July 9, 2025, the Italian Supreme Court – Third Criminal Division – reiterated that, in order to establish the criminal offense of fraudulent tax return through the use of invoices for non-existent transactions (Article 2, Legislative Decree No. 74/2000), it is necessary to verify not only the awareness of the falsity of the transaction (i.e. general intent), but also the specific purpose of evading taxes.
In the case at hand, the director of a company had been convicted for having included in the tax return invoices related to a service contract deemed only formally such but actually used to conceal an illicit labor supply (i.e. “somministrazione illecita di manodopera”).
However, the Supreme Court found that the challenged ruling lacked any reasoning regarding the mental element of the offense, merely asserting the circumvention of contribution and contractual obligations, without any investigation into the taxpayer’s evasive intent.
Recalling a well-established legal principle (see Supreme Court Judgment No. 37131/2024), the Court emphasized that verifying the specific intent is essential, as it constitutes the qualifying subjective element of the offense. The mere use of invoices related to a fictitious contract – which masks a different economic operation – is not sufficient, in the absence of proof that the taxpayer knowingly pursued an undue tax saving.
In conclusion, the annulment with referral to the Court of Appeal of Perugia confirms the need, in tax criminal matters, for a rigorous assessment of fraudulent intent, which cannot be automatically inferred from the civil reclassification of the contractual relationship.
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In its judgment No. 19985 of 7 May 2025, the Italian Supreme Court (i.e. “Corte di Cassazione”) upheld the legitimacy of a dismissal for just cause issued to an employee who, in performing his duties as a cashier, had committed repeated accounting irregularities. These mainly involved the failure to register sales transactions and the omission of issuing fiscal receipts.
According to the Court, such conduct – although involving relatively small amounts and in the absence of clear evidence of misappropriation – was nonetheless sufficient to irreparably undermine the relationship of trust between the employer and the employee.
The case originated from an internal investigation initiated by the company through a private investigation firm, which uncovered repeated anomalies in the employee’s handling of cash transactions. These findings led to the initiation of disciplinary proceedings and the subsequent dismissal for just cause.
The dismissal was challenged in court by the employee.
The Court of first istance, by way of an interim order issued at the end of the summary phase under Article 1, paragraphs 51 et seq. of Law No. 92/2012, and a subsequent confirmatory judgment issued at the opposition stage, upheld the employee’s claim. It annulled the employer’s dismissal and ordered the payment of compensation.
According to the first-instance judge, the employer had failed to provide sufficient evidence to support the allegations made against the employee. In particular, the accounting records submitted by the company were deemed unreliable; the identified cash discrepancies were considered to be within normal operational margins and not disciplinarily relevant. Furthermore, the absence of a precise correlation between unrecorded transactions and cash surpluses did not, in the court’s view, support an inference of misappropriation. The Court also noted that the shared use of the same cash register by multiple employees, all operating under a single identification code, made it impossible to conclusively attribute the irregularities to the dismissed worker.
The Court of Appeal overturned the lower court’s decision, upheld the employer’s appeal, and fully rejected the employee’s challenge.
In contrast with the first-instance rulings, the Court of Appeal found that the allegations had been sufficiently substantiated through a set of consistent circumstantial elements, including statements from the investigative personnel, evidence of cash shortages, and a thorough evaluation of witness and documentary evidence.
As a result, the appellate judges deemed the dismissal lawful, holding that the employee’s conduct – given the nature of his role and despite the relatively small sums involved – constituted a serious and repeated breach of the duties of honesty and loyalty, thus justifying the immediate termination of the employment relationship.
The employee filed an appeal before the Italian Supreme Court, raising five grounds of challenge, including the alleged failure by the Court of Appeal to examine key facts of the case – specifically, the claim that the employee had appropriated the proceeds from sales.
The Supreme Court dismissed the appeal in its entirety, fully upholding the lower Court’s decision. According to the Court, dismissal for just cause can be justified without proving misappropriation in the strict legal sense. It is sufficient that the employee’s conduct – by its objective and subjective seriousness – is capable of irreparably damaging the bond of trust with the employer.
In the case at hand, the repeated failure to record sales and to issue receipts, without any plausible justification, amounted to willful misconduct. Even in the absence of a significant financial loss, such behavior undermines the employee’s future reliability in the performance of his duties.
The Court further reiterated that the principle of proportionality must be assessed not only in relation to the actual economic damage, but also with regard to the nature and frequency of the violations, as well as the employee’s role within the company. The modest amount of money involved is therefore irrelevant; what prevails is the need to safeguard the integrity of the fiduciary relationship – particularly where the conduct is repeated over time and clearly attributable to the employee.
In conclusion, the Supreme Court held that the failure to record cash transactions and issue fiscal receipts – even for small amounts – may constitute just cause for dismissal when such conduct reflects a willful, repeated, and disloyal attitude that irreparably undermines the employer’s trust. Specific proof of misappropriation is not required; it is sufficient that the behavior gives rise to serious doubts about the employee’s future trustworthiness.
Continue reading the full version published on Norme & Tributi Diritto de Il Sole 24 Ore.
