The Court of Cassation – with judgment no. 21621 filed on 4 September 2018, has ruled that a disciplinary dismissal for circumstances established by a private detective is not lawful if such dismissal is based on facts occurred within the context of the performance of the job duties and connected to the latter. In the case at hand, a worker had been responsible for tampering with the attendance sheet, in order to conceal his absence from work. On discovery of the worker’s conduct, by way of a private investigation agency, the company activated against him a disciplinary procedure, which ended with a dismissal for cause. The worker appealed against the measure and the court ruled that the company conduct was lawful. Called upon the issue, the Court of Cassation reversed the outcome of the litigation. Having examined the documentation of the case, the Court of Cassation ruled that any circumstance relating to the correct performance of job duties must be assessed by the employer or persons within the company organization. In any case, this does not preclude the possibility for a detective to be actually hired to establish the existence of conducts legitimising the disciplinary measures. However, according to the Court of Cassation, “the control carried out by security guards or investigation agencies cannot concern under any circumstance the fulfilment or non-fulfilment of the contractual obligation to perform one’s own duties” since the investigation “must be limited to the worker’s breaches that are not related to a mere fulfilment of the obligation.” In other words, the hiring of an investigation agency is justified in the case of wrongdoings and the need to establish their nature, even if there is suspicion or a mere supposition that the wrongdoings are being committed.

The Court of Cassation, in its judgement No. 25147 dated 24 October 2017, deemed lawful the dismissal for just cause ordered to an employee who downloaded company data (not password-protected) on a personal pen driver, without disclosing them to third parties. According to the Court, indeed the fact that the employee had not disclosed the data unlawfully stolen from the company servers, but only saved them on a pen drive, was not sufficient to determine the unlawfulness of the dismissing measure issued without notice on the basis of National Collective Bargaining Agreement (CCNL) of the sector. This, because that conduct still constituted a violation of the obligations of due diligence and loyalty referred to in Article 2105 of the Civil Code. The Court of Cassation, in the course of the argument as a basis of the decision, also pointed out that even the failure to protect company data with passwords would have not affected the lawfulness of the employer dismissal. This because the nature of the data, which was obviously confidential, remains such even if access to employees is free nor this can in any way legitimize the conduct of the employee. Basically, the employee must not perform activities contrary to the interests of the employer, meaning those that, although not currently causing damage, have the potential to do harm.

The Court of Cassation, with its judgement No. 29613 dated 11 December 2017, declared lawful the dismissal for just cause ordered to an employee who carried out another activity during his absence from work, in addition to an injury, to assist a family member with disability pursuant to article 33 of Law 104/1992. In particular, the Court of Cassation deemed valid the decision with which the competent local Court of Appeals confirmed the judgement of the Court of first instance and rejected the employee’s appeal against the dismissing measure. According to the Court of Cassation, first of all, the fact charged against the employee was adequately detailed and properly met the requirements for providing adequate defence, since the days on which the work activity would have been carried out, were indicated. Regarding the seriousness of the complaint which led to the dismissal, the Court pointed out that the fraudulent conduct committed by the employee was such as to irremediably damage the relationship of trust established as a basis for the employment relationship, especially in consideration of the “… reason for the leave for disability dishonoured by the obvious lack of interest shown toward the family member under denied assistance”.