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.
◊◊◊◊
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.
◊◊◊◊
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.
◊◊◊◊
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.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
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:
