The Court of Venezia, in its ruling no. 494/2021, stated that a company that suffered a cyber-attack and was forced to pay a ransom to recover stolen data can fire an employee who has repeatedly surfed on unsafe sites for private purposes and put internal security at risk.
Facts of the case
The worker employed by a company operating as a shipping agency was dismissed for just cause, following a legitimate disciplinary procedure, for having improperly used a company personal computer.
The charges brought by the company against the employee were twofold:
The employee challenged the company’s termination because it was retaliatory and discriminatory, with the sole aim of ousting him as a union representative (RSA) and therefore considered an “inconvenient employee.” The employee claimed that the misconduct was not attributable to him since the computer assigned to him did not have a password and any person could have accessed it.
The employer took legal action, rejecting the employee’s claims and emphasising the entirely causal nature of the discovery of the data since it emerged as a result of the necessary checks carried out following a hacking of its computer systems and the spread of the ransomware virus.
The Court’s decision
The Court of Venice – confirming the decision of the Judge in the summary stage of the proceedings – declared that there was just cause for termination and, consequently, the dismissal was lawful.
The Judge pointed out that the allegations against the employee had been acquired by the company under art. 4 of the Workers’ Statute. Under the above Article, the employer may legitimately acquire information from the company tools assigned to employees and use them for all purposes related to the employment relationship (including disciplinary purposes). This is on the condition that employees have been given adequate information on how to use such tools and control methods, under the Privacy Code. The company had adopted a Regulation on the use of the tools provided. Since its adoption, it had been posted on the notice board and published in a folder on the server accessible to all employees.
The Judge observed that even without considering the actual adoption of the regulation (which is the subject of censure by the employee), what mattered was the numerous and perpetual use for obvious (and not disputed) personal purposes of the computer, such that the disciplinary value of the facts existed.
Finally, the Judge rejected the employee’s complaint about the failure to place a personal password on the computer. According to the Judge, its improper use was undoubtedly attributable to the employee in question since he had: visited his account, booked trips in his name, used personal USB keys, visited social networks linked to him, etc.
In the Court’s opinion, the charges brought against the employee and legitimately acquired by the company became actual and were so severe as to justify his immediate dismissal.
The Supreme Court of Cassation, in its Order no. 21172/2021, established that a director’s waiver of remuneration may be expressed by their conclusive conduct that unequivocally reveals their intention to waive the relevant right. However, the waiving act must be inferred not from the mere failure to request compensation, whatever the reasons, but from external circumstances which give a precise negotiating meaning to the conduct.
Facts of the case
In challenging his dismissal, a manager, who was also managing director, claimed his right to receive remuneration for the position held during the relationship.
The Court of Appeal, rejected the manager’s request, because there were elements that led to the presumption that the assignment was free of charge, including (i) the non-payment of a fee for the assignment period, (ii) the absence of any request on his part during that period, and (iii) the statement made by a witness regarding the decision of the Board of Directors, in the presence of the person concerned, not to pay remuneration.
The manager thus appealed to the Court of Cassation, arguing that he had never waived his right to remuneration for the office of managing director.
The Supreme Court of Cassation’s ruling
The Court of Cassation held that the manager’s claim was well-founded. It reiterated the nature of the director’s relationship as an organic identification with the company. Secondly, it affirmed the director could waive the remuneration, even if not done expressly, as long as with a conclusive conduct “that unequivocally reveals his actual and definitive waiving will.”
As for the notion of “conclusive conduct“, the Court of Cassation referred to a general principle according to which ” for silence to have a negotiating value, it is necessary either that the common way of acting or good faith, in the relations established between the parties, impose the burden or duty to speak, or that the silence of one can be understood as adherence to the will of the other, according to a given historical and social moment and considering the quality of the parties and their business relations.”
According to the Court of Cassation, the trial Court erred in considering the inaction of the parties and the alleged decision of the Board of Directors not to specify anything about the director’s remuneration to be significant. This is because the manager’s omissive conduct cannot be seen as a manifestation of will.
The Court of Cassation thus annulled the ruling and referred the parties to a different section of the Court of Appeal.
Other related insights:
De Luca & Partners managing partner Vittorio De Luca, discusses the legislative measures that introduced the ban, initially generalised and later sectorial, of dismissals for economic reasons. The government has reached an agreement with the social partners on the dismissal prohibition, what is your take on it? “The agreement includes a “commitment” to use all existing social safety nets before resorting to redundancies, in particular the use of wage subsidies,” he stated. “The agreement in question, structured as it is, represents a pure form of recommendation and certainly not an obligation. Faced with a generalised ban from March 2020 and until March 2021, we are now faced with a diversified framework: with the Support Decree and the law converting the Support Decree bis, the ban on dismissals has been partly concluded and partly extended at certain conditions”. Looking at the European situation, the European Union has basically rejected the measure in effect from March 2020, underlining that Italy is the only Member State to have introduced a generalised ban on dismissals from the beginning of the Covid-19 crisis.
What do you think about this? “With the Recommendations published on June 2 the European Commission explained how the ban on dismissals was not particularly effective and turned out to be unnecessary considering the extensive use of systems aimed at maintaining jobs. The Commission rejected the measure pointing out that it is a measure that is to the advantage of permanent employees and detrimental for fixed-term, temporary or seasonal workers. He continued – it is necessary to emphasise that the freezing of entire manufacturing sectors risks being counterproductive because it hinders the necessary adjustment of the workforce to changing company needs”.
The Court of Cassation, with its ruling no. 22819/2021, considered legitimate the dismissal of a worker who refused to return to the company, at the employer’s request, because the preventive suitability medical examination referred to in Article 41, paragraph 2, letter e-ter), of Legislative Decree 9 April 2008, no. 81 (Consolidated Law on health and safety at work) was not carried out.
After 12 months of sick leave following a prolonged period of illness, a railway operator worker was asked to return to the company’s offices to undergo a medical examination which would have taken place within a few days.
The worker refused to comply with the employer’s request to visit the company and the employer, after having notified her unjustified absence from work, at the end of the disciplinary procedure, dismissed her for justified subjective reason.
The Court of Appeal of Rome rejected the complaint lodged by the worker against the judgement of the Court of Rome, which rejected the objection lodged by the worker against the order, under art. 1, paragraph 51, Law 92/2012, which rejected the application for a declaration of nullity or unlawfulness of the dismissal with notice.
The worker appealed to the Court of Cassation against the Court of Appeal’s decision.
Article 41, paragraph 2, letter e-ter of the Consolidated Law on health and safety at work requires that health monitoring includes “medical examinations before the resumption of work, following an absence for health reasons lasting more than 60 continuous days, to verify work suitability.”
The Court of Appeal found that the preventive medical examination in question constituted a check that the Law did not consider as a legal condition for resuming work.
Since the preventive medical examination referred to in Art. 41 of the Consolidated Law was not a condition for resuming work, according to the Court of Appeal, the refusal to continue work constituted an unjustified absence, to which dismissal with notice was legitimate.
The Court of Cassation held that the preventive medical examination referred to in Art. 41 of the Consolidated Law aims to verify the suitability for the tasks and restore to general work and not a specific task.
The Supreme Court, in previous similar cases of termination for just cause, stated “the rule should be read – according to an interpretation consistent with its literal wording and purpose – in the sense that the “resumption of work” against which the medical examination must be “prior”, is the practical assignment of the worker to the same tasks previously carried out, when they return to the company after an absence for health reasons lasting more than 60 days, since these are theonly tasks for which it is necessary to carry out a check of “suitability” i.e. ascertain whether the worker can carry them out without prejudice or risk to their psycho-physical integrity.” “The worker, if once again assigned to the same tasks assigned before the start of the absence period, may refrain from carrying out the same tasks, under Art. 1460 of the Civil Code, given that the medical examination provided for by the rule is part of the fundamental entrepreneurial obligation to prepare and implement the measures necessary to protect the worker’s safety and health” (Court of Cassation ruling no. 7566/2020). Consequently, “their omission may constitute a serious breach by the employer which, if appropriate, legitimises the exception of breach by the worker under art. 1460 of the Civil Code” ( Court of Cassation – Joint Chambers ruling 22 May 2018, no. 12568).
The Court of Cassation pointed out that the case in which the worker refuses to return to the company must be kept separate from this hypothesis.
The Court of Cassation noted that, once the reason justifying the absence ceases to exist (in this case the worker exceeded her required leave of absence), the worker cannot be allowed to refrain from going to work.
The Supreme Court emphasised that such a request is to be considered “a moment distinct from the assignment of duties, since it is intended to make the relationship operative again and the employer may arrange a different placement of their employee within the company organisation, as part of their powers, even if provisionally and pending the completion of the medical examination and the related suitability check“ (see Court of Cassation ruling no. 7566/2020).
Based on the above, the Court of Cassation held that the worker’s refusal to return to the company was unjustified and confirmed the legitimacy of the disciplinary dismissal with notice.
Other related insights:
In a ruling dated 8 July 2021, the Court of Trento, upheld a disciplinary dismissal (for just cause) imposed on a teacher who repeatedly refused to wear a protective mask while working at school.
In this case, the teacher, employed by the Autonomous Province of Trento, refused to comply with an order issued by the head of the educational activities department, who asked her to wear a protective mask to ensure the health and safety of children, colleagues and the school community. In support of her refusal, during the disciplinary proceedings, the employee claimed that she did not want to wear the mask because she was a “conscientious objector” and that additionally, she was unable to do so for health reasons. Dismissed for just cause, she appealed to the employment tribunal of Trento, requesting reinstatement.
The Tribunal found that the allegations made by the employee did not include any medical certification capable of justifying her refusal to wear the mask. Her conduct conflicted with the guidelines for the protection of health approved by the President of the Autonomous Province of Trento by order of 25 August 2020 and, at national level, with the Protocol for the protection of health and safety at work, and the Memorandum of Understanding signed by the Ministry of Education on 6 August 2020, prescribing the obligation “for anyone entering school environments” to “adopt hygienic precautions and use a mask.”
According to the Court of Trento, the above administrative measures were based on the legislator’s will (Article 16, paragraph 1, of Decree 18/2020), which sees masks as personal protective equipment. Based on previous Court of Cassation guidelines (25932/2013 and 18265/2013), the Trento court judge recalled that “the persistent refusal by the employee to use the personal protective equipment justifies the dismissal of the defaulting employee.”
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