The Court of Cassation with ruling No. 15523/2018 had the opportunity to clarify, once again, a few important cases concerning a dismissal ordered upon conclusion of disciplinary proceedings pursuant to art. 7 of the Law No. 300/1970. The judges of the Court of Cassation, in fact, returned to explore the heavy and controversial matter of linking the disputed fact with the letter starting the disciplinary proceeding to a different disciplinary assumption. On the matter, the Court reminded how said possibility is not excluded since it would exclusively be related to a different take on the same fact subject matter of the dispute, relating to which the employee had the opportunity to exercise his right of defence. On the contrary, it was also restated how the employer does not have the possibility to bring forth new and/or additional factual circumstances respect to those subject matter of the dispute, since this conduct would irremediably damage the right of the defence of the worker who would not have, in this manner, the possibility to present his own reasons related to said circumstances. In this manner, the Court of Cassation confirms its opinion according to which it is necessary full matching between the disputed facts and the ones at the root of the dismissal tied to the disciplinary proceedings.

The Court of Cassation, with ruling No. 19731 dated 25 July 2018 has recently expressed its opinion on the repêchage obligation. In the case in question, an employee had filed a law suite against the dismissal ordered by the company due to closing down of the department where he worked, stating that the dismissal was unlawful for breach of the repêchage obligation. This since in his opinion (i) the employer company after the dismissal had continued hiring on a regular basis and with repeated staff leasing contracts and (ii) the staff leasing contracts reported reasons that did not match the true tasks then carried out by the leased staff, tasks that the employee had made himself available to carry out. In fact, confirming what the Judges having jurisdiction had ruled, the Court  of Cassation rejected the appeal of the employee and pointed out that the employer, subjected to a long lasting period of difficulties in getting results and financial difficulties, had the right to reduce its staff. And according to the Court of Cassation, it can do so by redistributing to the residual personnel the tasks previously assigned to the dismissed employee or making use, for strictly limited time periods, to external resources hired with fixed term contracts or staff leasing contracts. In addition, according to the Court of Cassation, the use of overtime work by the employer after the employee’s dismissal, also pointed out by the employee in support of his own claim, is explained according to said principle. This since the greater amount spent for the overtime remunerations of employees asked to work overtime are without a doubt lower than the costs associated to maintain a person hired under an open term contract.

The Court of Cassation, with judgement No. 25147/2017, stated that dismissal of an employee who copies confidential corporate data on a personal pen drive, without the employer authorisation, is legitimate, even if this information is not disclosed to third parties.  This is because the violation of contractual duties also occurs when a particular conduct, even if it does not result in actual damage, has intrinsic potential to become detrimental to the interests of the employer. The Court deemed the dismissal legitimate since the conduct contested to the employee was to be considered as censurable pursuant to the provisions of Article 52 of the CCNL for the chemical sector applied in the company. Specifically, the aforesaid article includes among the cases punishable by dismissal: theft, voluntary damage to corporate assets and theft of drawings, tools and sheets owned by the company. According to the Court of Cassation, the simple copying of data falls within these cases, having identified in the behaviour of the worker a conscious conduct, respect to which the lack of IT measures by the employer to protect the data was completely irrelevant.

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.