By judgment No. 18168 of 26 June 2023, the Italian Court of Cassation once again addressed the issue of the limits of employer controls via the use of IT tools, establishing the unlawfulness of dismissal and the non-usability of evidence gathered following a check on an employee’s company e-mail carried out by the employer company in breach of, inter alia, the provisions on the protection of personal data.
The facts of the case
The procedural case stems from a disciplinary measure against a worker for ‘insubordinate conduct and breach of the duties of diligence and loyalty as well as of the general principles of fairness and good faith’ because, among other things, he had had dealings with competitors.
The evidence relating to the alleged facts had been collected following an indiscriminate investigation carried out by the company into the company email assigned to the worker.
The Court of Appeal, in upholding the first instance ruling, found that the dismissal was unlawful and ordered the company to pay sums in lieu of notice supplementary indemnity, and as amounts due as severance pay (TFR)
The unsuccessful company thus appealed to the Italian Court of Cassation.
‘Defensive controls’
On this occasion, the Court of Cassation once again returned to the issue of so-called ‘defensive controls’, reaffirming the distinction between a. ‘controls in defence of the company’s assets’ and b. ‘defensive controls in the strict sense’.
a. The ‘controls in defence of company assets’
The ‘controls in defence of company assets’ concern all employees (or groups of employees) who in carrying out their work are in contact with company assets and must necessarily be carried out in compliance with, and within the limits of, the provisions of Article 4 of the Italian Workers’ Statute (Italian Law No. 300/70).
b. ‘Defensive controls in the strict sense’
The ‘defensive controls in the strict sense’, on the other hand, are aimed at ascertaining specific unlawful conduct attributable, on the basis of specific indications, to individual workers and ‘remain, even today, outside the scope of application of Article 4’; these controls must be targeted and implemented ex post, prompted, therefore, by episodes that have already occurred ‘because only from that point onwards the employer can collect usable information’.
The decision of the Italian Court of Cassation
Returning to the present case, the Court of Appeal found that the company:
Since it is not possible ‘to remove the worker’s relationship with his employer from the general rules on the protection of personal data’, the Italian Court of Cassation itself – which refers to the founding principles of the matter including (i) the principles of minimisation and proportionality (ii) the principles of relevance and non-excessiveness with respect to a lawful purpose as well as (iii) the principles of transparency and fairness – clarifies that even in the context of a ‘defensive control in the strict sense’ it is necessary to ensure ‘a correct balance between the employer’s needs to protect the company’s assets and property and the indispensable protection of the worker’s dignity and confidentiality’.
For all these reasons, the Court concludes, the second instance judges correctly assessed the balance between the conduct engaged in by the company and the resulting level of intrusion into the worker’s private life.
The Italian Court of Cassation rejected the appeal, finding against the appellant company and upholding the unlawfulness of the dismissal as well as the unusability of the unlawfully acquired data.
The Italian Court of Cassation indicated the elements useful for guiding the Italian judge’s balancing act in cases of ‘defensive checks in the strict sense’:
By referring to the case law of the European Court of Human Rights (specifically, the case Barbulescu v. Romania, 5 September 2017), the Italian Court of Cassation indicated the elements useful for guiding the Italian judge’s balancing act in cases of ‘defensive checks in the strict sense’:
Other related insights:
On 18 May 2023, the Italian Court of Cassation, criminal division, judgment no. 21153,ruled that ‘risk assessment is a specific function of the employer, which cannot be delegated even through delegating functions to another person and any failure by the RSPP to cooperate in the drafting of the Risk Assessment Document (Documento di Valutazione dei Rischi, “DVR” may, at most, give rise to concurrent but not exclusive liability of the latter’.
The facts of the case
The case stemmed from a work-related accident that occurred to an employee of a company who, while arranging a stack of pallets that had not been properly stacked, was struck – on the head and shoulder – by pallets falling to the ground, sustaining injuries that resulted in an illness lasting more than 40 days.
Both the Court of Vercelli and the Court of Appeal of Turin convicted the sole director and ‘employer for company safety purposes’ of the criminal office under Article 590 of the Italian Criminal Code (‘negligent personal injury’). The court considered that the director was guilty of negligence, carelessness, inexperience and failure to comply with the rules for the prevention of accidents at work and for not having assessed the risk inherent in the construction of the stack of pallets.
An appeal to the Italian Supreme Court was lodged against the Court of Appeal ruling, alleging a breach of the law in relation to the finding of criminal liability. Specifically, the appellant – i.e. the employer for company safety purposes – argued that the appointment of an RSPP exonerated him from any liability. The RSPP should have, among other things, (i) assessed the risks associated with the specific work activity based on the delegation responsibilities; (ii) trained employees; (ii) evaluated the risks associated with the specific activity and (iii) drafted the DVR.
The Italian Court of Cassation
The Italian Court of Cassation affirmed that the assessment of the risks to the health and safety of workers present within a company is one of the employer’s specific obligations. This obligation, established by Article 17 of Italian Legislative Decree no. 81/2008, is non-delegable. ‘Any failure by the RSPP to cooperate in the drafting of the DVR may, at most, give rise to concurrent but not exclusive liability of the latter’. The Court also clarified, on this point, that the RSPP will be liable where it is possible to trace an injurious event back to a dangerous circumstance that the RSPP should have known about and reported and, instead, failed to do so.
For all these reasons, the Court of Cassation held the appeal to be inadmissible as the ground of appeal was manifestly unfounded.
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In conclusion, it seems possible to be able to state that an employer for company safety purposes is criminally liable if it is ascertained that an injury at work is caused by a failure to carry out a preventive assessment of the risk as well as by a failure to adopt the relevant measures necessary to reduce or eliminate that risk.
Other related insights:
The definition of worker for safety purposes according to the Court of Cassation
The Italian Court of Cassation, in its recent judgment no. 10802 of 21 April 2023, ruled once again on the timeliness of the communication of the dismissal, ruling that breach of the deadline established by the collective bargaining agreement for the adoption of the final provision of the disciplinary procedure may constitute a breach of the procedure referred to in Article 7 of the Italian Workers’ Charter (Statuto dei lavoratori).
This breach – where the sanction is a disciplinary dismissal – will result in the application of the protection provided for by Article 18, paragraph 6, Italian Law no. 300/70 (so-called ‘tutela indennitaria debole’ or reduced compensation), provided that the delay in communicating the dismissal is not significant and unjustified, on the basis that the principle of timeliness is one of substance and not just formality. These factors will be assessed by the trial judge on the facts.
The facts of the case
The procedural matter originates from the dismissal for just cause of which notice was given to an employee after the deadline set by the Poste Italiane CCNL applied to the employment relationship. The contractual provision established that ‘the communication of the ruling must be sent in writing to the worker within and no later than 30 days from the deadline for the presentation of the grounds, failing which the disciplinary procedure is considered to have been concluded’.
In the specific case, the company had sent the dismissal notice for the first time by registered letter within the terms set by the CCNL, but, having incorrectly indicated the recipient’s address, service was not considered to have been effected. Subsequently, the company, ten days after the deadline set by the CCNL, served the notice at the correct address through court officer.
As part of the trial on the merits, it was ascertained that the employee, several years earlier, had provided her residence address to the company’s human resources department, and asked to receive company communications at that address.
From these circumstances it was therefore ascertained that the sending by the Company of the first dismissal letter to an address that did not correspond to the one indicated by the employee could not be considered blameless.
Consequently, on the basis of the aforementioned provision of the collective agreement, the trial judges established that failure to comply with the deadline for sending the dismissal letter led to the closure of the disciplinary procedure, with consequent application of the reinstatement protection provided for by Article 18, paragraph 4, of Italian Law no. 300/1970.
The appeal to the Italian Court of Cassation and the decision taken by that Court
The company appealed to the Italian Court of Cassation against the decision taken by the Court of Appeal, putting forward two different grounds of appeal against the second instance judgment.
The first ground of appeal related to the alleged timeliness of the sending of the first dismissal letter, which should have been considered successful and knowledge of the contents of the document considered to have been received, despite the erroneous indication of the house number.
On a separate basis, the Company challenged the reinstatement ordered by the judges on the merits, noting that failure to comply with the final deadline certainly did not imply ‘in itself the rebuttal of the facts of which the worker has been accused nor the presumption iuris et de iure of their positive evaluation by the employer nor the exercise of the disciplinary power by acquiescence, since the delay could well be exclusively attributable to a mere (albeit culpable) error’.
The Italian Court of Cassation rejected the first ground of appeal finding that the ineffective service was attributable exclusively to the company. The Court excluded the possibility that sending a notice of dismissal, which was ineffective for reasons attributable to the employer, could not have an effect on the right being time-barred.
With regard to the second ground of appeal, the Italian Court of Cassation recalled judgment no. 30985/2017 of the Joint Divisions, regarding the principle of timeliness that characterises the disciplinary procedure and the sanctioning consequences in the regime under Italian Law no. 92/2012.
In that case the Joint Divisions noted a conceptual distinction between the ‘breach of rules governing the methods of carrying out the entire procedure in its various phases and the breach of the general substantive principle of the timeliness of the challenge when it takes the form of a significant and unjustified delay’.
In the specific case, the Italian Court of Cassation ruled that the decision taken by the Court of Appeal conflicted with the principles established by the Joint Divisions, according to which failure to comply with the terms set by the collective agreement for service of the letter of dismissal constitutes a procedural breach and gives rise to the sanction of compensation under Article 18, paragraph 6. The court held that greater protection for the employee can only be granted in the event of a significant and unjustified delay in the notice of dismissal, in common with the disciplinary charges, capable of infringing not only the formal but also the substantive principle of timeliness.
In conclusion, in accepting the appeal filed by the Company, the Italian Court of Cassation quashed the appealed judgment, referring the case to the Court of Appeal sitting with a different composition for the re-examination of the specific case in the light of the principle of law provided by the Court of Cassation judges.
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Despite the failure to challenge previous agreements and the loss of the worker’s ability to challenge these agreements, exceeding the maximum limits permitted for fixed-term contracts can render the employment relationship invalid. This was established by the Italian Court of Cassation in judgment no. 15226/2023 of 30 May 2023, based on a well-established interpretation and adopting a restrictive reading of the rules governing fixed-term work.
The facts of the case
The ruling of the Italian Court of Cassation originates from a judgment of the Court of Appeal of Brescia (no. 127 of 2017) which rejected a worker’s appeal concerning a fixed-term contract and numerous previous relationships with the same employer.
In the case, the worker had complied with the legal time-limit of 60 days from the end of the relationship to challenge only the last agreed fixed-term contract. The Court of Appeal of Brescia, considering this fact, dismissed the appeal, rejecting all connected requests.
The worker lodged an appeal with the Italian Court of Cassation against the judgment of the Brescia Court of Appeal.
The decision of the Italian Court of Cassation
The Italian Court of Cassation partially reviewed the aforementioned decision of the Court of Appeal. On the one hand, it reiterated that ‘on the subject of the succession of fixed-term agency employment contracts, the out-of-court appeal of the last contract in a series of contracts does not extend to the preceding contracts, even where a period of less than 60 days has elapsed between one contract and the next for the purposes of challenging the contract’. Therefore, the Court confirmed that the challenge in relation to the last contract does not extend to the preceding ones, even if less time has elapsed between one contract and the other than is necessary to bring the challenge.
After establishing this principle, the Italian Court of Cassation analysed the worker’s ability to claim abusive use of fixed-term contracts by the employer due to their excessive and repeated use, even if the limitation period had expired. The Court started from the recent interpretation of EU law by the European Court of Justice (judgment 14 October 2020 in case no. C-681/18, relating to the parallel institution of temporary agency work), according to which the Member States must adopt measures to preserve the temporary nature of temporary agency work, to avoid circumvention of the directive on this type of work.
In the light of this principle, the judge is called to evaluate the effect that the recurrence of fixed-term contracts can have in circumventing the EU rules which establish limits on the duration and quantity of fixed-term contracts. The Court held that the historical existence of previous relationships can and must be taken into consideration to assess whether the reasons for resorting to fixed-term work are actually of a temporary nature and that this assessment remains valid even if the limitation period for the worker to challenge those contracts has expired.
In other words, according to the Italian Court of Cassation, the expiry of the limitation period prevents the worker from taking direct action with respect to the previous unchallenged contracts, but the judge can consider their existence as historical precedents that may be used to assess whether their repetition has been abusive and whether the maximum duration established by law (36 months) has been exceeded.
In the light of this judgment, the principle emerges according to which, and in relation to successive fixed-term contracts, an appeal directed only against the last contract of a series, when the party is time-barred from appealing previous contracts, does not exclude the fact that the judge must take into account, in assessing the lawfulness of the contract challenged within the limitation period, the factual information on the existence of previous fixed-term relationships, to verify whether the relationship, considered as a whole, can be considered actually temporary or whether there has been abusive repetition, to be ascertained according to the rulings in the ECJ judgment of 14 October 2020, case C-681/18.
Other Related Insights:
The Budget Law extends the exception to extensions and renewals of fixed-term contracts
Dismissal for just cause of worker who gives personal badge to others to certify (false) attendance at the company is lawful.
The Italian Court of Cassation, by order no. 10239 of 18 April 2023, confirmed the decision taken by the Court of Appeal of Lecce which had held a dismissal for just cause of a worker who, while absent from work, had given his badge to a colleague to confirm the absent worker’s attendance in the workplace to be lawful. In the context of the assessments carried out by the Court of Appeal and then confirmed by the Court of Cassation, both the dismissed worker’s allegedly minor absence from work and the fact that no damage had been caused to the employer’s company were irrelevant for the purposes of assessing the lawfulness of the dismissal. Moreover, in the opinion of the Court of Cassation, the Court of Appeal of Lecce had correctly highlighted how the fact that the worker had already carried out similar fraudulent conduct on other occasions gave the episode, which was the subject of the dispute, particular gravity thus justifying the dismissal. In the context of their assessments, the Court of Cassation judges then confirmed the limits on challenging, within the appeal analysed by them, the activity [carried out by the trial judge] in interpreting that the conduct of the worker fell within the provisions of Article 2119 of the Italian Civil Code, for the purpose of identifying the just cause for dismissal, on the basis of which an appeal cannot put forward a reconstruction and assessment of the facts different from that underlying the contested decision.
The facts of the case and the outcome of the trial
The case originates from the dismissal for just cause, of which notice was given on 23 May 2017, of a worker who was accused of having given a colleague his personal badge so that he could falsely certify his attendance at the workplace.
The employee challenged the dismissal judicially, arguing that it was unlawful and seeking, primarily, reinstatement in the post previously occupied and, in the alternative, that the employer company be ordered to pay damages.
In both the summary phase of the so-called Fornero Procedure (Rito Fornero) and in the opposition phase under Article 1, paragraph 57, Italian Law no. 92/2012, the Court of Taranto rejected the worker’s complaint, confirming the lawfulness of the dismissal.
By judgment no. 290/2019, the Court of Appeal of Lecce rejected the appeal brought by the worker and confirmed the first instance judgment of the Court of Taranto. Specifically, the Court of Appeal of Lecce observed that, although it was not possible to ascertain to what extent the improper use of the badge had allowed the worker to falsely certify his attendance at the company, the assessment of the existence of the just cause for dismissal concerned specifically ‘the improper use of the attendance monitor’, which, according to a specific internal service directive, had necessarily to be carried out personally by the workers and not by complicit third parties ‘as was pointed out to the worker, thus making the duration of the absence from the workplace irrelevant’.
On the basis of those considerations, the Court of Appeal of Lecce had therefore considered the sanction of dismissal imposed as proportionate, since the conduct complained of was an abuse of trust punishable by dismissal under the national collective bargaining agreement applied to the employment relationship in question.
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