With its judgement no. 21667 of 19 September 2017, the Court of Cassation has maintained that an employee performing a work activity while on sick leave does not legitimize its outright dismissal at all times. In ruling in this sense, the court has made reference to the case law that maintains that the performance of a work activity while on sick leave constitutes a disciplinary violation if (i) it presumes a lack of the disease itself or (ii) it jeopardizes or delays healing and consequently return to work.  With specific regard to the case at hand, the Court of Cassation has clarified that the conduct of the sick worker – consisting of driving his own car to his son’s shop to perform certain activities, such as moving light weights as well as raising a shutter – is not a violation per se of the duty of fairness and good faith by which the same must abide not to delay healing.  This is so because the extra work activity of the sick worker was so limited that it could be performed without harming his physical integrity, and therefore, without delaying his time to healing. Consequently, the employee dismissal is illegitimate.

The Court of Cassation, with judgement No. 19103 dated 1 August 2017, confirmed the unlawfulness of disciplinary dismissal ordered to an employee responsible for having provided confidential information about the company for which she worked, also expressing libellous opinions on it and its employees, to a former colleague then hired by a competitor company. The case in hand refers to the conclusion of a disciplinary proceeding founded on a completely generic objection. In this respect, the Court of Appeals competent for the territory, overturning the judgement of first instance, stated that “the disciplinary objection was formulated in generic terms, making reference to facts lacking temporal setting and referred to unspecified individuals”, reasons for which it had to be declared void. And the judge in charge, subsequently involved in the matter, in confirming the second instance ruling had the opportunity to state once again the unanimous trend in case-law according to which disciplinary objections must meet the requirements of “specificity, immediacy and immutability”. This because they are “destined to ensure the right of defence of the accused employee, a right that would be compromised whenever the employer could order a dismissal for conducts for which the employee was not put into a position of justifying him/herself because [such conducts] were not promptly objected, [or were] different from the conducts subject matter of the initial objection, or [were] not adequately defined in their essential methods and thus impossible to identify specifically”. Thus, the violation of the fundamental requirements of the objection (specificity, immediacy and immutability) vitiates the disciplinary proceeding, thus voiding the disciplinary provision that may be issued.

The Court of Cassation, with judgement No. 19655 dated 10 August 2017, has confirmed the choice of an employer to dismiss one of its employees in order to increase management efficiency and business profit, even if lacking a [financial] crisis situation. In the case in hand, the employer decided to remove a department when a specific job order failed to materialize, in order to maintain unaltered the business profit. This choice, in the opinion of the competent Court, cannot be argued. The consequent dismissal, according to the Court, must be deemed lawful since it was for reasons related to the productive activity, work management and normal operation of the activity. Therefore, once having verified the effectiveness of such reorganization and the consequent removal of the job position, dismissal had to be considered fully valid. This judgement falls within a case-law trend that is becoming increasingly more common (see judgements No. 25201/2016, 25197/2013, 7474/2012 and 15157/2011), even if it was not issued unanimously (see judgement of the Court of Cassation No. 14871/2017 according to which in order to have economic dismissal, in addition to corporate reorganization, it is also necessary to prove the effective need to reduce costs to face unfavourable conditions).

The Court of Cassation, with judgement No. 20130 dated 17 August 2017, has once again voiced its opinion on the proportionality of the disciplinary sanction against an employee with respect to the employee’s improper conduct pursuant to art. 2106 of the Italian Civil Code. In the case in hand, the dismissal impacted a member of the orchestra of a Foundation who had repeatedly missed verification exams due to an alleged psycho-physical condition, submitting, only in a few occasions, medical certificates. The Foundation had, therefore, ejected the orchestra member upon result of a disciplinary proceeding on the basis of the fact that the member, missing the verification exams, did not allow verifying that he/she maintained the professional requirements necessary for participation into the orchestra. In this respect, the Court of Cassation, mentioning its previous judgements, restated that “on the matter of disciplinary dismissal (…) the principle of proportionality for the penalty assigned for the violation calls for the judge to verify the severity of the fact under the objective and subjective point of view, since the latter can fall from a psychological standpoint under the element of fault as well as that of wilful default”.

With its decision no. 15204 of 20 June 2017, the Court of Cassation intervened in the subject of the disciplinary dismissal of a senior executive without prior application of the procedure referred to in Art. 7 of Italian Law no. 300/1970. The Supreme Court referred to some recent pronouncements, including Plenary Sitting decisions (Cass. No. 2553 of 10 February 2015, Cass. Plen. Sit. No. 7880 of 6-30 March 2007) and clarified that “the procedural guarantees laid down under Art. 7 of Italian Law no. 300/1970 are an expression of the principle of general basic guarantees safeguarding all forms of disciplinary dismissal”, which is applied to all forms of subordinate employment, without making a distinction between employees whatever their position in the hierarchy. A different kind of interpretation would be in contrast with the courts’ decisions on the application of the law, because it would revive “an old and hackneyed notion of a senior executive as an alter ego of the entrepreneur”, and would be in breach of the principle of “audiatur et altera pars”, as a worker’s indefectible guarantee. The Court maintained, moreover, that senior executives are expressly included in the listings in Art. 2095 of the Italian Civil Code and, as such, are included in the regulations governing employees in general. By failing to implement the procedural guarantees referred to in Art.7, the resulting claims will be those laid down in collective labour agreements for unjustified dismissal (payment of an indemnity in lieu of notice and of a supplementary indemnity).