DLP Insights

No just cause of dismissal if employer accept the behaviour (Court of Cassation no. 35/2011)

Catégories: DLP Insights, Case Law

Court of Cassation stated that, in case of dismissal for just cause, employer has to prove that the employee’s behaviour has damaged the trust beneath the employment relationship, in order to legitimate the measure. In such assessment, employer has to take into consideration several aspects such as the kind of employment relationship, position of parties, reliance level linked to duties that the employee carries out, circumstances and reasons of facts on issue, intensity of intentional element. Therefore, according to the Supreme Court, the dismissal for just cause is unlawful whereas the employer has implicitly accepted the behaviour of employee. In light of the above, the concrete denial of basic elements of the contract is not adequately proved. In the case at issue, the Court considered as unlawful the dismissal of the employee who entered into company premises besides the work hours and for reason independently from the service because the receptionist gave his consent to the access. The permanence of this practice made unnecessary an authorization ad hoc, although this was provided by National Collective Agreement.

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