In judgment no. 35066 of 14 December 2023, the employment division of the Italian Court of Cassation confirmed that an employee’s conduct outside work can irreparably damage the duty of mutual trust between the parties if it has only the potential objective capacity to impact the relationship and undermines the expectations of the future proper fulfilment of the working obligations, in relation to the specific duties or the specific activity.
The case on which the Court was asked to rule arose from an employee’s dismissal for just cause. The employee was a team leader with coordinating duties, who had, at different times, engaged in abusive and, moreover, violent relationships outside work with two female colleagues, demonstrating to them that he was immune from limits and discipline, also in view of his position. Such conduct, in the view of the employer bank, had been seriously prejudicial to the female colleagues and to the bank itself.
The first instance judges upheld the lawfulness of the dismissal, on the basis that the conduct alleged against the worker qualified as harassment at work and, as such, justified the sanction of dismissal.
The worker has appealed to the Italian Court of Cassation, alleging, among other grounds, misapplication of Article 2105 of the Italian Civil Code, on the basis that his conduct to be taken into consideration should refer only to the private (or rather outside work) context and consequently, on the one hand, is not relevant for disciplinary purposes and, on the other hand, cannot prove a breach of the duty of mutual trust as it cannot be used to call into question the proper performance of the employee’s duties.
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Sustainable leadership cannot and must not simply be a passing trend, but must represent the new approach to entrepreneurship, aimed at combining financial profit with the long-term preservation and development of the community.
In the current global economic environment, more and more companies are placing the pursuit of sustainability goals at the centre of their strategy.
This new perspective requires entrepreneurs, directors and those in charge of running a company, to take a different approach to businessthan in the past.
This is where the concept of sustainable leadershipcomes in, which can be defined as carrying on a business activity that combines the pursuit of financial results in the short to medium term with the preservation and development of the common good in the long term.
There are essentially three pillars on which sustainable leadershipis based.
The first of these is environmental sustainability. New leaderscan no longer limit themselves to the mere – albeit important – enforcement of environmental protection legislation. In fact, sustainability in this area requires awareness and knowledge not only of global and local environmental issues, but also of the impact of the individual organisation and its products on the planet, as well as the long-term implications of their decisions and actions, so that long-term strategies and business practices can be adopted for its protection.
From this perspective, “sustainable leaders” will not be able to act alone, but will necessarily have to create synergies with the entire supply chain and the local community so that the organisational models adopted within the company to protect “green issues” do not remain confined to them and are instead supported by other organisations and the local area for more effective action.
For the development of the local area and the community in which the company operates, the new approach to business leadership must then also be based on solid ethical values, thus developing social sustainability, the second pillar of sustainable leadership.
With this in mind, leaders will be required to focus on fostering positive relationships between the organisation and society, understood as people: from employees to workers in the entire supply chain, to local communities and customers.
In particular, it will be necessary to adopt ethical business practices, promote diversity and inclusion, safety at work, invest in local communities through corporate social responsibility initiatives, promoting and protecting, more generally, basic human rights while also providing the necessary tools to prevent and, where appropriate, manage any negative impacts of business choices on people and their rights.
The third pillar of new leadershipis economic sustainability, understood as the balance between profit and public interest.
In this respect, the “sustainable” leader employs ethical governance criteria, adopts responsible management of financial resources, prioritises the development of the local economy, invests in research for technological innovation, all with the aim of improving the lives of the community, consumers and all stakeholders affected by the company’s activities.
This new way of “doing business” is of course not without its challenges as sustainable leaders have to change established business models. Moreover, in this context, the pressures to achieve a given financial outcome and generate short-term profits together with the complexity of certain issues, such as global climate change and inequalities, can naturally be a significant obstacle to a paradigm shift.
Precisely for these reasons, new leaders, in addition to possessing a mindset open to innovation and a strong capacity for continuous learning, will have to create a climate of general mobilisation and motivation towards sustainability, involving the entire corporate population and beyond.
This could be done by means of training courses, awareness-raising campaigns, reviews of organisations and, why not, of the remuneration structure by introducing, for example, variable incentive systems conditional on the achievement of certain sustainability targets.
Involvement on these issues should not, however, stop at the corporate level alone. Indeed, sustainable leaders must be able to effectively and consistently disseminate the company’s sustainability values outside the company as well, without falling into greenwashing.
Continue reading the full version published in Il Sole 24 Ore’s Guida al Lavoro.
Worker’s recidivism also taken into account for purposes of correct legal classification of conduct within context of just cause for dismissal.
The Italian Court of Cassation, Employment Division, with judgment no. 15140 of 30 May 2023, returned to deal with the dismissal for just cause of a worker on a fixed-term contract for repeated negligence in the performance of the work, having been found to be recidivist in the negligent conduct, and who had already been sanctioned by disciplinary suspension.
The Court of Appeal, confirming the first instance judgment, rejected the appeal of the former employee, considering the existence of just cause underlying the dismissal imposed by the employer.
The first instance judgment was based on an assessment of the seriousness of the conduct and the proportionality of the sanction, with reference both to the provisions of the applicable collective agreement and to the employee’s specific recidivism.
The worker appealed to the Italian Court of Cassation, asking the court to overturn the judgment on the basis, among other things, of erroneous or misapplication of mandatory rule of law, to the extent that the dismissal fell within the case of dismissal ‘for poor performance’, and therefore a justified subjective reason and not ‘for just cause’.
The Italian Court of Cassation, in its reasoning rejecting the worker’s appeal, referred to its consistent case law according to which the assessment of the seriousness and proportionality of the conduct are the responsibility of the over-reaching and investigative activity of the Judge on the merits, which must refer on the one hand to the actual facts of the case, of an objective and subjective nature, and, on the other hand, the weighting carried out by the collective bargaining agreement. This is because ‘the scale of values expressed by the collective partners must constitute one of the parameters to which reference must be made to fill in the general clause of Article 2119 of the Italian Civil Code’.
Continue reading the full version published at Norme e Tributi Plus Diritto of Il Sole 24 Ore.
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.
Continue reading the full version published at Modulo 24 Contenzioso Lavoro of Il Sole 24 Ore
With Order No 7029, of 9 March 2023, the Italian Court of Cassation, reversing the conclusions reached by the Court of Appeal of Bologna, deemed legitimate since justified by a just cause the dismissal of a worker who, derisorily, had turned against a colleague telling her in dialectal form ‘but why did you get pregnant too?’, ‘but why aren’t you a lesbian’, ‘and how did you get pregnant?’.
The facts of the case
The situation in question had occurred at a bus stop, where the colleague was waiting to take up service as a driver, in the presence of other people, while both the fired worker and the person they spoke to were in uniform and therefore recognizable as employees of the company employer.
The employee, fired by the company, challenged the dismissal and obtained, on appeal, partial acceptance of his appeal. Specifically, the appeal judges believed that the episode contested against the employee, albeit undisputed from a factual point of view, should be relegated to ‘substantially uncivilized’ conduct punishable at the most with a conservative sanction (suspension from pay and service) .
The order of the Italian Court of Cassation
The Italian Court of Cassation, in overturning the decision of the appeal judges, reiterates that, according to established jurisprudence, the ‘just cause’ of dismissal pursuanttoArticle 2119 of the Italian Civil Code integrates a general clause, which requires to be actualised by the interpreter through appreciation of external factors relating to the general awareness and the principles tacitly referred to by the law, therefore through declinations that have a legal nature and whose non-application can be deduced before the Italian Court of Cassation as a violation of the law.
According to the Judges of the Court of Cassation, the assessment made by the trial judge in attributing the disputed conduct of the employee to mere “uncivilised” behaviour would not conform to the values present in the social context and to the principles of the legal system, referring, in fact, to a behaviour contrary only to the rules of good manners and the formal aspects of civil life, where the content of the expressions used and the further factual circumstances in which the behaviour of the employee must be contextualized are instead in contrast with much more meaningful values now rooted in the general awareness and are expression of general principles of the legal system (Articles 2, 3, 4 and 35 of the Italian Constitution).
General principles which, the Court continues, find precise declination in the legal system through the provision of anti-discrimination regulations in various ways aimed at preventing or repressing forms of discrimination linked to gender, among which Italian Legislative Decree no. 198/2006 (Italian Code of equal opportunities between men and women) whose Article 26, first paragraph, also identifies harassment as discrimination, namely those unwanted behaviours, carried out for reasons connected to gender, with the purpose or effect of violate the dignity of a female or male worker or create an intimidating, hostile, degrading, humiliating or offensive environment.
In the light of the above considerations, the Court quashed the decision of the Court of Appeal for the review of the overall case in order to verify the existence of just cause for the dismissal notified to the concerned worker in the light of the correct reference value scale reconstructed by the Court itself in the order in question.
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