With its order no. 28606/2021, the Court of Cassation returned to the issue of leave under Law no. 104/1992, stating that the requesting employee must guarantee continuous and global assistance to the disabled family member, although they may devote a limited time to their personal needs during the leave. If the causal link between the absence from work and the assistance to the disabled person is entirely lacking, this constitutes improper use of the leave (or abuse of right) or a serious breach of the duties of fairness and good faith towards the employer and the insurance company, resulting in the employee’s liability.
An employee was dismissed for just cause because, on the day of leave granted to assist his severely disabled mother, he was found working in his wife’s shop. To prove that he was assisting his mother, the employee stated that he had stayed at her home for about 50 minutes to prepare a meal for her. The Court of Appeal, reforming the decision of the Court of First Instance, declared the dismissal to be lawful, considering that it had been proved that the employee had carried out activities unrelated to the necessary family assistance on the day of leave. According to the Court, this behaviour had irreparably damaged the bond of trust. The worker appealed to the Court of Cassation.
The Court of Cassation, in considering the dismissal lawful, noted that under Law no. 104/1992, leave must always have a causal link between absence from work and assistance to the disabled person. According to the Court, the worker must guarantee continuous and global assistance to the disabled family member, however, during leave, can devote a limited time to his personal needs. The absence of a causal link leads to the conclusion that the leave is improper and the employee’s breach of his duty of fairness and good faith is serious, giving rise to his liability.
Leave under Law no. 104/1992 must be used following its function and in the presence of a causal link with the assistance activity for which it was granted. This leave cannot be used for different needs (whatever they may be) than those related to the function for which it is intended. This is because the benefit entails an organisational sacrifice for the employer that can only be justified in the presence of needs recognised by the worker and social conscience as deserving of protection.
Other related insights:
With its ruling no. 33809 of 12 November 2021, the Court of Cassation stated that an employee who deletes or transfers company data outside is engaging in disciplinary conduct and a civil and criminal offence. The employer may legitimately acquire and produce the private correspondence found after the Company’s personal computer is returned and present this evidence in Court to prove the employee’s unlawful conduct. The right to defence in Court prevails over the inviolability of correspondence.
In this case, a manager, after resigning, returned to the company the personal computer assigned, completely formatted and without any document, data or company information. The employer then turned to a computer expert to recover the data and information deleted by the former employee.
After retrieving the password to access the Skype platform, the expert found some conversations had by the former employee with parties outside the company organisation (including competing companies), revealing the perpetration of a series of disloyal and illegal conducts. The Company filed a claim for compensation for the damages allegedly suffered because of the manager’s conduct.
The Court of Appeal of Turin, overturning the first instance court’s decision, held that the Company’s claim was unfounded, ruling out the existence of any evidence of the employee’s allegedly unlawful conduct and consequently the right to compensation for the damages claimed. The Court of Appeal considered the conversations acquired by the Company on the manager’s Skype account unusable in Court, as they were obtained in violation of the secrecy of correspondence and without his consent.
In overturning the Court of Appeal’s decision, the Court of Cassation found that the employee conduct damaged the Company’s assets. This was relevant not only in civil law terms, with the consequent right of the employer to compensate for the damage suffered, but in criminal law, as it constituted an offence provided for in Article 635 bis of the Italian Criminal Code (i.e. damaging information, data and computer programs). According to the Court of Cassation, the employee conduct is relevant from a disciplinary point of view as it was contrary to the obligations of loyalty and diligence.
As for the legitimacy of documents containing personal data produced in legal proceedings, the Supreme Court, referring to previous decisions, affirmed that this “is allowed when necessary to exercise one’s own right of defence, even in the absence of the owner’s consent and any method used to acquire their knowledge. However, defending oneself in legal proceedings, using the others’ personal data, must be exercised regarding the duties of correctness, pertinence and non-excessiveness (…). Document production legitimacy must be based on the balance between the content of the data used, to which the degree of confidentiality must be applied, and the defence needs.”
As for the personal data processing, the Court stated that “the right to defence in Court prevails over the right to inviolability of correspondence, allowing art. 24, letter f) Law 196/2003 to disregard the data subject consent for personal data processing, when it is necessary to protect a right in Court.” The Court continued, “This is conditional on data being processed exclusively for that purpose and the period strictly necessary for its pursuit.“
According to the Supreme Court, the right of defence would not be limited to the legal proceedings stage, as it could be extended to evidence gathering in the procedure, even before a dispute has been formally established.
Finally, the Court of Cassation, in explaining its decision, confirmed the legitimacy of the checks carried out by the employer under the rules contained in art. 4, Law no. 300/1970 (applicable ratione temporis), finding the checks “defensive” in nature. According to the Court, the checks took place after the employment termination and after the commission of the harmful act which consisted of deleting company data by the manager.
Other related insights:
The Court of Cassation, with its ruling no. 25731 of 22 September 2021, stated that, in the absence of prior information under Article 4, para. 3, of Law no. 300/1970, the employer cannot use the data found in a company chat room where an employee bad mouths their superiors and colleagues, for disciplinary purposes.
An employee was dismissed for just cause because a conversation was found where the employee while chatting with another colleague, had used heavily offensive words towards a hierarchical superior and some other colleagues. The conversation was found during a check carried out by the IT staff to verify if there was company data to be kept, before closing the chat.
The Court of First Instance, first, and then the Court of Appeal, held that the dismissal for just cause was unlawful.
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Article 4 of Law 300/1970 provides as follows:
1. “Audiovisual equipment and other tools which provide for the possibility of remote control of workers’ activities may be used exclusively for organisational and production requirements, for work safety and the protection of company assets, and may be installed subject to a collective agreement entered into by the unitary trade union representatives or company trade union representatives. (…)”
2. The provision referred to in paragraph 1 shall not apply to the tools used by the worker to perform work (…).
3. The information collected under paragraphs 1 and 2 may be used for all purposes related to the employment relationship provided that the worker is given adequate information on how to use the tools and checks carried out and under Legislative Decree no. 196 of 30 June 2003 .”
The latter paragraph specifies the need to inform employees of the tools use and monitoring methods, especially if the tools installed for the needs referred to in the first paragraph or assigned to perform the work referred to in paragraph 2 include any remote monitoring of the workers’ activity. This is so that the data collected is used for purposes related to the employment relationship, including any disciplinary measures.
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The Court of Appeal of Milan found that the company’s access to the chat room was unlawful, as it was carried out in breach of the above paragraph 3, since the employer had failed to provide the necessary timely and adequate information to employees on the monitoring methods.
The losing company appealed to the Court of Cassation.
The Court of Cassation, referring to the arguments put forward by the Court of Appeal of Milan, stated that the company’s access to the company chat room was unlawful because it was carried out in violation of Art. 4, para. 3, Law 300/1970. According to the Court, the company chat room is to be qualified as a work tool within the meaning of paragraph 2 of the above Article 4. Chat room monitoring could only have taken place by providing workers with “adequate information on how to use it.“
In this case, there were company regulations which provided for the possibility of carrying out checks on the chat during maintenance, updating or to obtain useful data for cost planning. However, no prior and adequate information had been provided to the employees on the monitoring due to the chat closure and its progressive abandonment, nor on the tool monitoring methods. On the contrary, the communication about the chat service interruption was sent when the checks had already been carried out.
In confirming what was stated by the local court, the Supreme Court held that the material collected could not be used by the employer. This is because the employee’s conversations constituted a form of “private confidential correspondence, which requires protection of the freedom and secrecy of communications under Art. 15 of the Constitution.”
The confidential content of the conversations was also apparent from the fact that the chat room could only be accessed using a personal password and the messages sent could only be read by the recipients, “with the result that access to the chat content is precluded to outsiders and their disclosure and use is not permitted.”
The Court “ruled out a disparaging intent” by the employee, holding that “the e-mails content and the expressions used constituted an outburst by the sender, intended to be read only by the recipient, without any unlawfulness and being a free expression of thought in a private conversation.”
Based on the above, in confirming the decision of the Court of Appeal of Milan, the Court of Cassation held that there was no just cause for dismissal, ordering the employer company to reinstate the employee in her place of work and pay her damages of seven months’ salary.
Other related insights:
With its order no. 27934 of 13 October 2021, The Court of Cassation ruled that the employer’s waiver of the resigning employee’s notice period removes any obligation to pay them the relevant payment in lieu of notice. This is because the resigning party has no legal interest in continuing the employment relationship.
In this case, a resigning executive obtained a court order for payment of the allowance in lieu of notice, a decision that was upheld on appeal, based on the company’s waiver of the resignation notice period did not relieve it from the obligation to payment in lieu of notice.
Objecting to the court’s ruling, the losing Company appealed to the Cassation Court.
The Court of Cassation, explained the financial function of the notice which consists in mitigating the prejudicial consequences of the contract termination for the party suffering the termination.
The Court of Cassation stated that the notice has the following functions:
The Court of Cassation analysed the issue of the notice waiver by the party affected by the termination and the legal consequences of such waiver, which vary depending on whether it is given real or mandatory effect.
Referring to previous case law, the Court of Cassation, confirmed the mandatory effect of the notice, from which the withdrawing party is free to choose between continuing the relationship during the notice period and the payment in lieu of notice.
Based on that reconstruction, according to the Court of Cassation, the non-withdrawing party has a freely waivable claim. The non-withdrawing party owes nothing to the other party due to its waiver on this basis. The latter has no legally qualified interest in continuing the employment relationship until the end of the notice period.
On these grounds, the Court of Cassation upheld the Company’s appeal, revoking the payment order issued in favour of the resigning executive.
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It should be noted that the Court of Cassation’s decision is applicable only with reference to the legal rules on notice and not when the collective bargaining agreement (i.e., Commercial NCLA) requires the employer to pay the resigning employee the payment in lieu of notice, even if there is a notice waiver.
Other related insights:
With its order no. 26709 of 1 October 2021, the Court of Cassation expressed its opinion on the legitimacy of dismissals of workers who are caught carrying out activities incompatible with their medical condition, while being absent for illness.
The Supreme Court ruled on the legitimacy of the dismissal for just cause of an employee (who suffers from acute lumbar and sciatic pain) for keeping a lifestyle incompatible with the disease that afflicted him (the worker was caught lifting and handling bags of soil) while being absent for illness. In addition, this lifestyle was likely to affect his recovery and return to work.
The court reached that conclusion based on the findings of the appointed medical examiner who deduced that the symptoms suffered by the employee would have allowed him to carry out the tasks assigned within the limitations imposed by the company physician. Also the court-appointed expert found that the patient’s activities during his absence due to illness, if they are proved, would have prolonged the period of clinical recovery.
The proportionality assessment of the expulsion sanction was confirmed, as performance of other activities by the employee absent due to illness conflicted with the general duties of fairness and good faith and specific contractual obligations of diligence and loyalty.
The worker appealed to the Court of Cassation, citing the infringement and misapplication of Art. 18, paragraph 4, Law no. 300/1970, as his first ground of appeal, arguing that the conduct carried out during the period of illness constituted mere tasks of daily living (pointing out the modesty of the effort made, which consisted in carrying “two simple bags”). He claimed that the medical condition from which he was suffering should be considered to be proven in the light of the recorded medical certificates.
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