The negative implications of criminally unlawful acts on the proper execution of work performance, in compliance with the employee’s obligations, constitute just cause for dismissal.
The Supreme Court, in ruling no. 31866 of December 11, 2024, established that unlawful conduct outside the workplace may have disciplinary relevance, as the employee is not only required to perform the assigned tasks but also, as an ancillary obligation, to refrain from engaging in behaviors outside the workplace that could harm the employer’s moral and material interests or compromise the relationship of trust. If such conduct is of a particularly serious nature, it may also justify dismissal for just cause.
As is well known, Article 2119 of the Civil Code defines just cause for termination as “a cause that does not allow the continuation, even temporarily, of the employment relationship.” This means an event, attributable to one of the parties, of such severity that any alternative to immediate termination would be inadequate to protect the interests of the terminating party.
The concept of just cause is rooted in the broad scope of its definition and is classified among the so-called “general clauses” (Supreme Court ruling no. 10964 of May 8, 2018). It is an open-ended concept that requires interpretation through the assessment of factual elements (including the evolution of social awareness and the perception of the severity of certain events) and legal considerations.
As stated by the Supreme Court, “just cause for dismissal is a concept that the law, in order to adapt regulations to a complex and ever-changing reality, defines through a provision (classified among the so-called general clauses) with limited content, outlining a generic model that requires specification through interpretation by considering both external factors related to general awareness and the principles implicitly referenced by the provision itself” (Supreme Court, September 30, 2022, No. 28515).
Moreover, it has been recently reaffirmed that the consideration of external factors related to general awareness is an integral part of the interpretative process (Supreme Court, August 22, 2024, No. 23029).
In outlining the types of employee behavior that may constitute just cause for dismissal, case law has established that the breach of trust may result either from a violation of contractual obligations or from off-duty conduct.
An employee is required not only to fulfill contractual obligations but also to adhere to ancillary behavioral duties, which, even outside the workplace, mandate the protection of the employer’s moral and financial interests. Violating these obligations undermines the trust necessary for the proper continuation of the employment relationship.
For example, in several cases, the courts have deemed violations of the so-called “minimum ethical standard” as just cause for dismissal. This refers to conduct that any reasonable person—including the employee—should recognize as contrary to the fundamental principles of civil coexistence, fairness, and good faith.
One significant case involved the dismissal for just cause of a school bus driver following a final criminal conviction for engaging in acts unequivocally aimed at causing the termination of his partner’s pregnancy. The Supreme Court of Cassation upheld the legitimacy of the dismissal, citing the objective severity of the offense and its social disvalue, which directly impacted the employer’s public image (Supreme Court, April 3, 2024, No. 8728).
Similarly, the off-duty possession of a significant quantity of narcotics for trafficking purposes was considered to seriously affect the employment relationship, particularly in terms of the employee’s future reliability. The Supreme Court ruled that an employee is required not only to perform their assigned tasks but also to refrain from behaviors—outside the workplace—that could compromise the trust-based relationship with the employer, which is subject to the assessment of the trial judge (Supreme Court, August 6, 2015, No. 16524).
In that case, the Supreme Court upheld the lower court’s decision, which had deemed the employee’s conduct particularly severe in terms of future reliability. The employee, a “chef de rang” at a thermal resort, was responsible for room service, a role involving frequent contact with guests. The court found the conduct even more serious given that the drugs were purchased from a colleague.
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Dismissal for just cause of worker who gives personal badge to others to certify (false) attendance at the company is lawful.
The Italian Court of Cassation, by order no. 10239 of 18 April 2023, confirmed the decision taken by the Court of Appeal of Lecce which had held a dismissal for just cause of a worker who, while absent from work, had given his badge to a colleague to confirm the absent worker’s attendance in the workplace to be lawful. In the context of the assessments carried out by the Court of Appeal and then confirmed by the Court of Cassation, both the dismissed worker’s allegedly minor absence from work and the fact that no damage had been caused to the employer’s company were irrelevant for the purposes of assessing the lawfulness of the dismissal. Moreover, in the opinion of the Court of Cassation, the Court of Appeal of Lecce had correctly highlighted how the fact that the worker had already carried out similar fraudulent conduct on other occasions gave the episode, which was the subject of the dispute, particular gravity thus justifying the dismissal. In the context of their assessments, the Court of Cassation judges then confirmed the limits on challenging, within the appeal analysed by them, the activity [carried out by the trial judge] in interpreting that the conduct of the worker fell within the provisions of Article 2119 of the Italian Civil Code, for the purpose of identifying the just cause for dismissal, on the basis of which an appeal cannot put forward a reconstruction and assessment of the facts different from that underlying the contested decision.
The facts of the case and the outcome of the trial
The case originates from the dismissal for just cause, of which notice was given on 23 May 2017, of a worker who was accused of having given a colleague his personal badge so that he could falsely certify his attendance at the workplace.
The employee challenged the dismissal judicially, arguing that it was unlawful and seeking, primarily, reinstatement in the post previously occupied and, in the alternative, that the employer company be ordered to pay damages.
In both the summary phase of the so-called Fornero Procedure (Rito Fornero) and in the opposition phase under Article 1, paragraph 57, Italian Law no. 92/2012, the Court of Taranto rejected the worker’s complaint, confirming the lawfulness of the dismissal.
By judgment no. 290/2019, the Court of Appeal of Lecce rejected the appeal brought by the worker and confirmed the first instance judgment of the Court of Taranto. Specifically, the Court of Appeal of Lecce observed that, although it was not possible to ascertain to what extent the improper use of the badge had allowed the worker to falsely certify his attendance at the company, the assessment of the existence of the just cause for dismissal concerned specifically ‘the improper use of the attendance monitor’, which, according to a specific internal service directive, had necessarily to be carried out personally by the workers and not by complicit third parties ‘as was pointed out to the worker, thus making the duration of the absence from the workplace irrelevant’.
On the basis of those considerations, the Court of Appeal of Lecce had therefore considered the sanction of dismissal imposed as proportionate, since the conduct complained of was an abuse of trust punishable by dismissal under the national collective bargaining agreement applied to the employment relationship in question.
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The Supreme Court With ruling no. 553 of 2021 confirmed the legitimacy of the dismissal for just cause imposed on a worker who had uttered offensive and threatening sentences against the company’s judicial administrator.
The Supreme Court argued that the decision of the Court of Appeal of Bari which had declared the legitimacy of the dismissal was based not so much on the probative value of the report issued by the judicial administrator but on the oral preliminary findings from which the profiles of seriousness of the conduct put in place by the worker, such as to be incompatible with the continuation, even temporary, of the employment relationship.
Not only that, the Court of Cassation specifies that even under the profiles of proportionality and reasonableness, the maximum expulsive sanction must be considered fully congruous with respect to the conduct attributed to the worker.
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The Court of Cassation, with its ruling no. 7567 of 27 March 2020, observed that in the case of just cause the judge is required to verify the conduct the worker is charged with in all the objective and subjective aspects that compose it, regardless of the characterisation contained in the collective contract.
Facts of the case
The case in hand originated from an argument between an employee with worker duties and his shift supervisor in the company’s premises; during this argument the worker kicked the supervisor in the knee.
The worker was dismissed for just cause based on the contents of the National Labour Collective Contract for employees of the chemical and chemical-pharmaceutical industry which considers this case as “serious disruption of company activity” which justifies, dismissal on the spot.
Following a challenge to the dismissal and, in particular, the conclusion of the “Fornero” interim proceeding, the worker obtained cancellation of the same with the additional protection of reinstatement and compensation for damages as per article 18, paragraph IV, Law no. 300 of 1970.
The former employer company, at this point, filed an appeal against the Court’s sentence, which, ascertaining the existence of the fact, rejected the appeal considering the episode, in any case, not suitable for causing a “serious disruption of company activities”.
The first instance ruling was confirmed under appeal: in particular, the district judges of Milan, underlined how the company despite having contested the altercation and the resorting to violence occurring inside the perimeter of the plant, had not however expressed the essential parameter of “serious disruption of company activities”, nor had it explained, as instead it should have, the actual connotation of this within the framework of the entire episode, indicating the effects of the serious disruptions of company activities that had occurred. Consequently, the judges of the counterclaim considered the contestation inadequate for containing any referral to the event and to its seriousness, essential elements both for integrating the same contestation and put the accused in the condition of organising a defence possibly aimed at negating the event and its connotations.
Objecting to the ruling of the second instance the company appealed to the Cassation Court on three motives, challenged by the worker.
The decision of the Court of Cassation
The Court of Cassation invested with the case first underlined how the legal notion of just cause does not consider the provisions of the collective contract. Therefore, “listing of the cases of dismissal for just cause contained in collective contracts has” a “merely exemplary value, therefore it does not preclude an autonomous assessment by the trial judge concerning the adequacy of a serious breach or behaviour of the worker” such as to “cause the fiduciary relationship to cease between the employer and worker”. Thus the Cassation judges observed that in the verification of the existence of just cause or justified subjective motive for the dismissal, the trial judge finds only the limit that “a dismissal cannot be imposed for just cause when it constitutes a more severe punishment than that contained in the collective contract in relation to a certain violation, meaning the conduct claimed against the worker”.Furthermore, in the ruling in question, it states that “the judge called on to verify the existence of just cause or justified subjective motive for dismissal” is still always required to verify if the provision of the collective contract is consistent with the notions of just cause and justified motive. The same must “verify the conduct, in all the subjective and objective aspects that compose it, including beyond the envisaged contractual cases”. Therefore, the characterisation of the cases envisaged by the collective contract in identifying the conducts constituting just cause for dismissal cannot be considered binding.
Thus the Cassation judges, believing that the territorial court had omitted to assess the seriousness of the contested conduct and consequently the proportionality of the dismissal punishment – in contrast with the requirements of article 2119 of the Civil Code – annulled the ruling and referred the case to the Appeals Court in a different formation.
The Court of Cassation, with the sentence no. 4879 of 24 February 2020 confirmed that the reinstatement protection provided by article 18, paragraph 4 of Law 300/1970 in case of “inexistence of the claimed fact” is also applicable in the case of inexistence of the claim or if the same contains facts different than those used as the basis for dismissal.
Facts of the case
The court events resulting in the ruling of the Supreme Court witnessed the progression of two decisions aligned by the territorial trial judges.
The Court of Appeals, confirming the ruling of the judge of first instance, considered that:
Lastly, based on these findings the fairness of the applied reinstatement protection was confirmed, without finding the different issue of the proportionality between the dismissal and fact of modest unlawfulness.
Against the second instance decision, the employer filed an appeal in Cassation Court, deducing that procedural mistakes, even serious, can give rise only to a reduced indemnity benefit, while the other benefits may apply when there is a substantial lack of justification for the dismissal.
The decision of the Court of Cassation
The Court of Cassation observed that in the presence of a formally vitiated dismissal, and thus ineffective, due to violation of the motivation obligation, application of a reduced indemnity (still replacing the job) penalty is admissible, as long as variable from a minimum of 6 to maximum of 12 monthly salaries, taking into account the seriousness of the committed formal violation (article 18, paragraph 6 of the Workers’ Statute).
In any case, according to the Court of Cassation, without prejudice to application of different protections included in article 18, paragraphs 4, 5 or 7 – replacing the reduced indemnity benefit and not in addition to it – if, based on the worker’s claim, the unjustness of the dismissal emerges. Unjustness of the dismissal means the inexistence of a subjective or objective just cause or a just cause where the burden of proof, once the worker has explained his claim, remains the responsibility of the employer as per article 5 of Law 604/1966.
The Court of Cassation – faced with the debated issue of identifying an applicable protection regime in the event of initial omission of claim of certain behaviors – thus established that “where the dismissal is notified without disciplinary action, the same continues, as in the past, to be considered unjustified and is punished with reinstatement and limited compensation effects”.
Justification of the reintegration benefit, again according to the Court, is found in the fact that, according to article 18, paragraph 4 of the Workers’ Statute, such protection is provided in case of “inexistence of the claimed fact”, which implicitly cannot also include the supposition of inexistence of the claim.
Based on all of the mentioned motivations, the appeal of the employer company was rejected, since it was considered completely groundless.
