With judgment no. 4670 of 18 February 2019, the Court of Cassation maintained that the controls requested by the employers of an investigation agency are legitimate if the investigation concerns the control of behaviour that could be criminally relevant or fraudulent actions capable of damaging the employer.
The facts
A company active in the food industry had found out through a private investigation agency that on 22, 23 and 24 December 2014 and on 22 and 23 January 2015 and 5 February 2015, one of its own employees, instead of assisting a family member in relation to whom the worker had requested use of the leave allowed under Article 33 of Law no. 104/1992, had instead been busy with other personal activities (in places of business and other places, in any case not the one in which the assistance activities should have taken place).
The company had therefore started a disciplinary procedure against the employee, at the end of which it had served a notice of termination from employment for cause.
The worker had applied to the labour court for a declaration of unlawfulness of the dismissal in question and application of all the legal consequences resulting therefrom.
Even though the Court had excluded from the disciplinary measure the days of 22, 23 and 24 December given that the company had decided to suspend all work activities during the Christmas Holidays, it rejected the claim of the worker, declaring the dismissal legitimate.
The worker then filed a complaint before the Court of Appeal having jurisdiction pursuant to Law no. 92 of 2012, claiming also that the investigation agency was not licensed to carry out the investigations.
The Court of Appeal had upheld the judgment of the court of first instance and, in particular, had declared the dismissal legitimate, on the basis that the investigations aimed at the ascertainment of an improper use of the leaves pursuant to Law no. 104/1992 did not concern the performance of work activities. This is so because the investigations had been carried out during non-working hours and during suspension of the primary obligation to perform.
The court therefore ruled that the findings of the investigations and the first-hand testimony of the investigators were admissible, and that the argument of the agency not holding a license issued by the Prefecture had come too late.
In conclusion, the Court found that the worker had misused the right under Article 33 of Law no. 104/1992, betraying the confidence placed in the employee and constituting such a reproachable behaviour that the measure adopted was justified, even in the absence of other previous disciplinary measures.
The worker therefore filed an appeal before the Court of Cassation against the judgment of the Court of Appeal.
The ruling of the Court
The Court of Cassation upheld the decision of the Court of Appeal having jurisdiction and:
According to the Court of Cassation, the activities of the investigation agencies – in order to be lawful – should not extend to the work activities in the strictest sense. Indeed, under Article 3 of the Workers’ Statute, this is the direct responsibility of the employer and its collaborators. Therefore, the actions in question are justified not only because of the occurred wrongdoing and of the need to assess its nature, but also in the event of a mere suspicion or hypothesis that wrongdoings are being committed (see Court of Cassation no. 3590 of 14 February 2011; Court of Cassation no. 848 of 20 January 2015).
According to the Court, neither the principle of good faith nor the prohibition of remote controls referred to in Article 4 of the Workers’ Statute prevent the above, given that the employer can autonomously decide how and when to carry out the controls, including secretive controls, and given that the worker is obliged to act diligently while the employment contract is in force (see Court of Cassation no. 16196, 10 July 2009). This is so because the conduct of the worker:
Conclusions
In brief, it follows from the judgment at hand that the employer can legitimately hire an investigation agency to verify if during the periods of leave from work, on grounds of assistance to a family member, the worker performs other activities and, in the event of evidence in this sense, it can legitimately proceed to the dismissal of the worker.
Other News:
https://www.delucapartners.it/en/news/2017/employers-can-hire-a-private-investigator-to-make-sure-that-the-leaves-envisaged-in-law-no-10492-are-not-improperly-used/
Ascertainment of breaches of discipline by private detectives
With its order 25561 of 12 October 2018, the Court of Cassation handed down its ruling on the time limits by which the dismissal of an individual announced verbally can be challenged. In fact, the concept according to which this type of dismissal is not subject to the 60-day time limit but the limitation period of 5 years, was reiterated.
The Facts
This case originates from an appeal filed to the Court of Cassation against a ruling of the Court of Appeal having jurisdiction, which had admitted the first instance ruling declaring that a dismissal announced verbally was not effective.
In particular, the local Court had, among other things, found that the appellant’s complaint regarding the forfeiture of the worker’s right to challenge the dismissal lacked grounds, as it considered that Article 6 of Law 604/1966 was applicable, in light of the uncontested verbal nature of the dismissal in question.
The Court of Cassation reviewing the ruling rejected the appeal and ordered the appellant to pay the court fees.
Here we will discuss the second of the two reasons put forth by the Court of Cassation, i.e. the alleged violation and/or incorrect application of Article 6 of Law 604/1966, as subsequently amended, and therefore the supposedly unlawful rejection of the preliminary objection relating to time limits, due to the lack of legal action.
According to the appellant, the court in charge had overlooked the lack of legal action against the dismissal within the time limits set by the law and, in any case, the lack of a formally valid legal action prior to the establishment of a ruling declaring the unlawfulness of the dismissal.
The ruling of the Court of Cassation
The legislative data which the Court of Cassation initially applied was precisely the above-mentioned Article 6, par. 1, as amended by Article 32 of Law 183/2010, which reads: “the dismissal must be challenged within 60 days from receipt of its communication in writing or the communication of the reasons thereof, also in writing, under penalty of forfeiture, or where not simultaneous, by any written document, including an extra-judicial document which appropriately indicates the will of the worker (…)”. This legal action is considered to be ineffective if not followed by submission of an appeal to the Registry of the Court acting as Labour Court (Article 6, par. 2 of Law 604/1966), within 180 days.
In fact, with its order analysed herein, the Court of Cassation reiterated its own established principle (inter alia, Court of Cassation, Labour Section, Judgement no. 10547 of 20 May 2016; and Judgement 22825 of 9 November 2015), based on which the action aiming to render the verbal dismissal ineffective is not subject to the obligation to start an out-of-court action, due to the absence of a written document based on which the time limit for the appeal could be measured, pursuant to Article 6 above.
Therefore, in this case, as the verbal nature of the dismissal was not contested, the Court of Cassation ruled that the Court of Appeal correctly considered that the 60-day time limit under Article 6 of Law 604/1966 was not applicable, thereby making the dismissal subject only to the set limitation period.
Conclusions
Essentially, based on the ruling in question and the principle it was based upon, a worker who is dismissed verbally is not required to challenge the dismissal within 60 days (the time limit). A worker can therefore challenge it within the limitation period of five years from the time it is announced pursuant to Article 1442 of the Italian Civil Code.
With its recent judgement no. 21965 dated 10 September 2018, the Court of Cassation once again ruled on the well-known controversial issue of the boundaries between the right to criticize and insubordination, upholding the decision of the trial court. The judgement at hand found the dismissal imposed on an employee, who had uttered words deemed libellous by the employer, unlawful. More specifically, the employee – at the time of the events, a trade union representative – had been caught transmitting – via a Facebook chat – lines with a libellous, critical and offensive content regarding the director of his employing company, calling him slave-trader. The Court of Cassation, called to rule on the matter, established that in the case at hand the prerequisites for libel did not exist, because the worker had uttered those words on a private chat, the access to which was allowed only to the members of the trade union to which he belonged. On this point, the Court of Cassation clarified that the digital venue where this action had been committed must be considered a “private digital place of debate and sharing of opinions”: hence, a reserved and safe place which, as such, determines for those who are part of it a set of rights, including the right to privacy and freedom to exchange correspondence. In support of its stance, the Court of Cassation remarked that (i) Article 15 of the Workers’ Statute considers “freedom and the right to correspondence and any other form of communication” inviolable, as secrecy should be intended as the expression of the broadest freedom to communicate with predetermined subjects, and therefore as assumption that subjects other than the selected recipients do not illegitimately get to know the content of a communication and (ii) the protection of secrecy implies, in addition to the choice of the recipients and the sender’s intention to exclude other persons from knowing the message, also the use of a tool that embodies the quality of secrecy or confidentiality of the communication. Moreover, the Court, making reference to one of its previous rulings, reiterated that the right protected under Article 15 of the Italian Constitution “includes correspondence and the other forms of communication, including telephone, electronic, computer-aided communications between those present or those effected by other means provided by the ever-improving technologies.” Therefore, the need to protect the secrecy of communications also includes e-mail messages exchanged by mailing lists reserved to the members of a given group of people, newsgroups or private chat lines, whose access is conditional upon a password given to specific subjects. Lastly, the Court of Cassation specified that legitimizing dismissal for the reasons brought to its attention would be tantamount to legitimizing the control of the employer over the freedom to criticize, as well as, considering the circumstances, a violation of the trade union’s freedom, which in this way would be necessarily and inevitably demeaned. In consideration of all of the above, the Court of Cassation ordered reinstatement of the worker in his former job and payment of damage.
The Court of Cassation, with judgement no. 21438 dated 30 August 2018, ruled again on the subject matter of dismissal for cancellation of the job position. More specifically, a worker – among other things – had filed an opposition against the dismissal imposed on him, seeking annulment thereof, as he considered it retaliatory, and consequently, payment of a non-reinstatement allowance, equal to 15 monthly pays of the last comprehensive salary actually received, and the payment of damage in the amount of 14 monthly pays of his last actual comprehensive salary. In reviewing the judgment of the court of first instance, the Court of Appeal found the dismissal unlawful, even though in its opinion it was not discriminatory. This decision was due to the fact that the company had not proven the reasons why the petitioner had been dismissed, while other employees that performed the same duties and had less seniority than him had not been dismissed. Since the Court of Appeal found that the prerequisites for the actual protection regime did not apply, it condemned the employer to pay an allowance in the amount of 6 monthly pays of the last comprehensive salary actually received by the worker. In filing an appeal against this decision, the company argued, among other things, that in the course of the proceedings it had proven that (i) the closing of the division had been necessary due to critical circumstances of the company and (ii) in continuing the business, the company had preferred the use of semi-finished products, thus saving another sector. Therefore, in its opinion, the workers employed in such sector could not been dismissed, since the petitioner had never worked in it and lacked the necessary skills. The Court of Cassation found the above ground inadmissible on the assumption that the court of first instance had established, on the basis of preliminary findings and the submitted documents, that “there had been a mere reduction in the production activities” and that the company “had deemed it proper to privilege certain sectors without suppressing any”. Also, the company complained about the violation and wrongful application of Article 5, Law no. 223/1991, because the dismissal was not due to a reduction of equivalent and replaceable personnel but to the suppression of a sector of activities, whose one and only employee was the appellant. The Court of Cassation also rejected the above complaint. On this point, making reference to previous rulings of its own, the Court of Cassation first noted that the cause for dismissal should be evaluated by the employer, without the court having a say so on the selection of the company’s management criteria, in accordance with Article 41 of the Constitution. The Court of Cassation then reiterated that a dismissal for justified objective reasons is considered lawful if the conditions referred to in Article 3, Law no. 604/1966 are met. This means: a) cancellation of the division/job in which the worker is employed, without necessarily suppressing all duties previously assigned to him/her; b) attribution of the cancellation to the employer’s plans and choices that affect the undertaking’s structure and organization – the adequacy and appropriateness of which cannot be questioned by a court of law, provided they are real and not simulated; and c) impossibility to employ the worker in other duties. The Court of Cassation also remarked that the burden of proving the satisfaction of these pre-requisites rests on the employer, who can fulfil it also by way of presumptions. The worker’s obligation to prove the existence of assignable positions is expressly excluded. Also, according to the Court, if the justified objective reason consists of a generic reduction of homogeneous and replaceable personnel, neither the normal criterion of the job position to cancel nor the criterion of the impossibility to carry out a repêchage are applicable, because the former is no longer necessary and because all job positions are equivalent and all workers are potentially dismissible. Nonetheless, the choice of the worker to dismiss is not at the absolute discretion of the employer, which is however limited by the prohibition to discriminate and by the rules of correctness and good faith, pursuant to Articles 1175 and 1375 of the Italian Civil Code. On the matter, the Court of Cassation remarked that the judges discussed the issue of how to identify in practical terms the criteria that allow deeming said choice compliant with the aforementioned principles, deeming that it is necessary to refer, even while taking into account the diversity of the respective regimes, to the criteria established by Article 5 of Law No. 223/1991 governing collective dismissals, where the trade union agreement fails to indicate alternative criteria for such choice. Consequently, according to the Court of Cassation, in the case at hand, by the same token, the criteria of dependent family members and seniority level can be taken into consideration, given that the technical/productive and organizational needs are irrelevant, in the light of a full replaceability of workers. In other words, according to the Court of Cassation, even if several positions are interchangeable, where the criterion of the impossibility to carry out a repêchage does not apply, the employer should select the worker to dismiss on the basis of correctness and good faith. These principles – the Court went on to say – can be considered fulfilled if the employer, in selecting the workers to dismiss, keeps into account the criteria applied in collective dismissals, that is to say, the presence of dependent family members and seniority.
With its judgement no. 20761/18, the Court of Cassation, Labour Division, returned to rule on dismissal for exceeding the sickness period, confirming its opinion on the potential formal faults that may affect its validity. The ruling originated from the appeal brought by a worker against his dismissal for exceeding the sickness period, whose lawfulness had already been upheld by the courts of the previous two degrees. One of reasons at the basis of the appeal is that the worker had complained about the false application of the applicable rules, as the employer had failed to notify the employee of the imminent expiry of the sickness period. According to the employee, such failure resulted in the impossibility for him to exercise the right – guaranteed by the national collective bargaining agreement – to request a period of unpaid leave on expiry of such term. The Court of Cassation confirmed the lawfulness of the dismissal, clarifying and reiterating that there is no obligation from the employer’s part to notify the employee of the imminent expiry of the maximum sickness absence days, and that such a burden would not exist extensively, not even on the basis of the principles of correctness and good faith. In fact, the Court noted how such notification “would be used in truth to allow the employee to implement certain actions such as request for paid vacation or leave, essentially by-passing the verification of its unsuitability to carry out his obligations”, the latter being sufficient to exclude such information obligation. The Court of Cassation therefore took this opportunity to reiterate its orientation also in relation to other profiles pertaining to this type of dismissal. In fact, on one hand, the Court of Cassation remarked that Sundays and holidays, not covered by a medical certificate, although included between separate sickness periods, should be included in the calculation of the sickness period, unless proof is given of the actual interruption of the sickness in those days. On the other hand, the Court of Cassation noted that the obligation to communicate the reasons at the time of the dismissal for exceeding the sickness period does not require the indication of each separate leave, as it is sufficient – as happened in the case at hand – to indicate the full duration of the leaves. A dismissal for exceeding the sickness period is not equivalent to a dismissal for cause and, therefore, it is improper to speak of a confutation of leaves in this case. In the opinion of the Court of Cassation, the employer can indicate the total number of absence days occurred over a given period of time, without prejudice to the obligation for the employer, in case of legal proceedings, to submit and substantiate the elements that brought to the employer’s decision.
