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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On 16 September was published in the Official Gazette the Decree-Law no. 131/2024 (i.e. “Decreto Salva Infrazioni”) – in force since 17 September – which also intervened on the regulation of fixed-term contracts through which the European Union requested Italy to align Italian legislation with EU Directive 1999/70/EC on fixed-term work.
The “Salva Infrazioni” decree amended Article 28, paragraphs 2 and 3 of Legislative Decree No. 81/2015 (i.e. “Jobs Act”), introducing significant changes regarding the compensation indemnity for damages in case of fixed-term contracts declared unlawful.
Pre-existing regulation:
The maximum limit of the indemnity is reduced to 6 months’ salary in the case of collective agreements that provide for procedures to stabilize fixed-term workers.
Amendments introduced by Decree-Law No. 131/2024:
The Italian Data Protection Authority (‘IDPA’), with a Ruling of 7 March 2024 [announced in the Newsletter of 3 May 2024] upheld a complaint filed by a worker who had asked her former employer company for access to her personal file to find out what information could have given rise to a disciplinary sanction against her.
The company had not given an adequate response to the request and had only provided an incomplete list of the documentation collected, omitting information which formed the basis of the disciplinary sanction which was then imposed. The omitted information was only provided to the worker after the start of the IDPA’s investigation.
In its note of reply, the company claimed that it had not provided the worker with the above-mentioned documentation in order to protect its right of defence in court as well as the confidentiality of the third parties involved. The company also alleged that the complainant lacked standing to access the information, since it had been requested at a time when the disciplinary proceedings could no longer be challenged.
The IDPA reiterated that the right of access recognised by Regulation (EU) 2016/679 (‘GDPR’) is intended to allow the data subject to exercise control over his or her personal data and to verify its accuracy. Consequently, this right cannot be denied or limited depending on the purpose of the request. In fact, according to the provisions of the GDPR, data subjects are not asked to indicate a reason or a particular need to justify their requests to exercise their rights, nor can the data controller verify the reasons for the request.
Therefore, access to personal data cannot be denied because the data requested could be used by the data subject to defend himself or herself in court in the event of dismissal.
“The jurisprudence has on several occasions reiterated that the right of access derives, in addition to the legislation on personal protection data, from the ‘respect for the principles of good faith and fairness incumbent on the parties to the employment relationship under Articles 1175 and 1375 of the Italian Civil Code. This is confirmed by the fact that, for some time, the relevant sector’s collective bargaining agreement has provided that the employer must keep, in a special personal file, all the deeds and documents produced by the entity or by the employee himself or herself, which relate to his or her professional development, the activity performed and the most significant facts concerning him or and that the employee has the right to freely view the deeds and documents included in his or her personal file’ (Italian Court of Cassation, 7 April 2016, no. 6775)”.
Based on the points set out above, the IDPA imposed a fine of EUR 20,000.00 on the company.
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Summary of the right of access:
Other related insights:
The reference to “conciliation location” in Article 411 of the Italian Code of Civil Procedure does not permit company premises to be included among the protected locations (sedi protette), even if a union representative is present at the conciliation.
By order no. 10065 of 15 April 2024, the Italian Court of Cassation affirmed that a union negotiated conciliation agreement, under Article 411, paragraph 3 of the Italian Civil Procedure Code cannot be validly concluded at company headquarters. This is because company headquarters do not fall within “protected locations” (sedi protette) which are neutral and guarantee, together with the assistance provided by the union representative, that the worker is free to make his or her own decisions.
As an alternative to a judge’s ruling, out-of-court conciliation has always been viewed favourably by the legislature for settling employment disputes. For these purposes, the legislature has introduced over time a number of useful tools: the conciliation attempt at the Local Employment Inspectorate (Ispettorato Territoriale del Lavoro, ‘ITL’), which is optional, and mandatory only in cases of certified contracts, under Article 410 ; conciliation in the context of an employment contract with progressive entitlement (Italian Legislative Decree no. 23/2015); the union negotiated conciliation attempt (Article 411, Italian Code of Civil Procedure); attempted court conciliation (under Article 185, Italian Code of Civil Procedure and Article of 420, Italian Code of Civil Procedure); conciliation at university locations; conciliation by single judge (Article 11, Italian Legislative Decree no. 124/2004); conciliation in arbitration under Articles 412-ter and 412-quater.
Most recently, with the Cartabia Reform (Italian Legislative Decree no. 149/2022), the legislature also extended assisted negotiation to employment disputes through the introduction of new Article 2-ter to Italian Decree-Law no. 132/2014 (converted into law no. 162/2014). The Reform aims to facilitate the settlement of the dispute by legal representatives of the parties who initiate such proceedings, without the presence of a third-party conciliator, prior to bringing the court action.
From an employment law point of view, Article 2113, Italian Civil Code provides, in general terms, that waivers and settlements of employee’s rights deriving from mandatory provisions of the law or collective bargaining agreements are invalid. The provision also guarantees the employee the possibility of challenging the settlement, by any written document, within six months from the termination of the relationship or the subsequent date of the settlement.
Indeed, the legal system considers that, in contrast to civil law negotiations (formal equality between the parties), in employment relations there is a substantial financial inequality between employer and employee. This inequality must be rebalanced through the declared protection for the employee, to avoid the agreement causing damage to the employee instead of guaranteeing and protecting his or her rights.
Notwithstanding the above, Article 2113, Italian Civil Code, as is well known, also provides that waivers and settlements are valid (and, therefore, can no longer be challenged) if they are entered into in the locations exhaustively identified by the legislator, i.e.:
In these cases, the worker’s position is protected by the intervention of a third party, thereby ensuring that the worker is free to make his or her own decisions.
Recent case law is a real wake-up call for the employer, with particular reference to union assisted conciliation agreements, because it has held that such agreements are totally unchallengeable because they were signed in a protected location.
In fact, there are an increasing number of rulings (not only at first instance, but also on appeal) that have held union negotiated settlement agreements to be invalid if they lack certain characteristics.
For a union negotiated settlement agreement to be considered valid, it must involve effective assistance from the conciliator to whom the worker has given specific mandate.
The effectiveness of the assistance derives from the role attributed to the conciliator. In addition, as the settlement cannot be appealed, the conciliator must inform the employee in advance of the scope of the rights accrued and divested or dealt with differently from as provided for by law or by the collective agreement, as well as the consequences of signing the union negotiated settlement (see amongst others: Italian Court of Cassation, order no. 16154 of 9 June 2021).
Continuing the review of rulings that have found that a union negotiated conciliation agreement can be challenged, reference is made to the Court of Bari’s judgment of 6 April 2022. This judgment affirmed that if the assistance to the worker, as part of a union assisted settlement, was provided by the representative of a union to which the employee did not belong, then the agreement is invalid and ineffective.
Moreover, the Court of Rome (judgment of 8 May 2019) went so far as to hold that for the agreement to be unchallengeable (as provided for in Article 2113, paragraph 4, Italian Civil Code), union negotiated settlement must be expressly provided for in the collective agreement applied by the employer, which regulates its locations and procedures under Article 412-ter, Italian Code of Civil Procedure.
In addition, the Italian Court of Cassation held that for a union negotiated conciliation agreement to be valid there had to be a specific union mandate given when the conciliation is imminent and supported by assistance provided by the union to which the worker belongs and not by others (Italian Court of Cassation no. 16168/2004).
In recent months, case law has also addressed the issue of the “location” where the union negotiated conciliation agreement must be signed for it to be unchallengeable.
Reference should also be made to two recent cases on the subject, which is also the subject of the order under discussion.
By order no. 25796 of 5 September 2023, the Italian Court of Cassation – upholding the Appeal Court ruling – ruled that a conciliation agreement entered into at the Prefecture’s offices with the assistance of a workers’ union representative was not unchallengeable under Article 2113, last paragraph, Italian Civil Code. This was because such an agreement could not be considered to have been concluded at a conciliation location as required by the terms of the sector collective bargaining agreement under Article 412-ter, Italian Civil Code.
Similarly, a few months ago, the Italian Court of Cassation, in order no. 1975 of 18 January 2024, ruled that the need for a union negotiated conciliation agreement to be signed at a conciliation location is not a formal requirement: rather it ensures the employee’s understanding of the deed dealing with his or her rights that he or she is about to sign and, therefore, ensures that he or she is entering into the conciliation agreement of his or her free will. Therefore, if this understanding is nonetheless acquired, for example through comprehensive explanations provided by the union conciliator appointed by the worker, the purpose intended by the legislature and the parties to the collective agreement must be said to have been achieved. In such a case, therefore, entering into the conciliation agreement in a location other than the union premises does not invalidate the settlement.
The case related to this order originates from the signing of a conciliation agreement at the company’s premises, in the presence of the parties and the union representative.
In that agreement, the company “had committed not to carry out the pre-announced collective dismissals referred to in the letter starting the redundancy procedure on the condition that all employees accepted the proposed 20% decrease in monthly taxable salary for the period 1 March 2016 to 28 February 2018 with the possibility of extending the reduction for up to two more years”.
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In judgment no. 35066 of 14 December 2023, the employment division of the Italian Court of Cassation confirmed that an employee’s conduct outside work can irreparably damage the duty of mutual trust between the parties if it has only the potential objective capacity to impact the relationship and undermines the expectations of the future proper fulfilment of the working obligations, in relation to the specific duties or the specific activity.
The case on which the Court was asked to rule arose from an employee’s dismissal for just cause. The employee was a team leader with coordinating duties, who had, at different times, engaged in abusive and, moreover, violent relationships outside work with two female colleagues, demonstrating to them that he was immune from limits and discipline, also in view of his position. Such conduct, in the view of the employer bank, had been seriously prejudicial to the female colleagues and to the bank itself.
The first instance judges upheld the lawfulness of the dismissal, on the basis that the conduct alleged against the worker qualified as harassment at work and, as such, justified the sanction of dismissal.
The worker has appealed to the Italian Court of Cassation, alleging, among other grounds, misapplication of Article 2105 of the Italian Civil Code, on the basis that his conduct to be taken into consideration should refer only to the private (or rather outside work) context and consequently, on the one hand, is not relevant for disciplinary purposes and, on the other hand, cannot prove a breach of the duty of mutual trust as it cannot be used to call into question the proper performance of the employee’s duties.
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Sustainable leadership cannot and must not simply be a passing trend, but must represent the new approach to entrepreneurship, aimed at combining financial profit with the long-term preservation and development of the community.
In the current global economic environment, more and more companies are placing the pursuit of sustainability goals at the centre of their strategy.
This new perspective requires entrepreneurs, directors and those in charge of running a company, to take a different approach to businessthan in the past.
This is where the concept of sustainable leadershipcomes in, which can be defined as carrying on a business activity that combines the pursuit of financial results in the short to medium term with the preservation and development of the common good in the long term.
There are essentially three pillars on which sustainable leadershipis based.
The first of these is environmental sustainability. New leaderscan no longer limit themselves to the mere – albeit important – enforcement of environmental protection legislation. In fact, sustainability in this area requires awareness and knowledge not only of global and local environmental issues, but also of the impact of the individual organisation and its products on the planet, as well as the long-term implications of their decisions and actions, so that long-term strategies and business practices can be adopted for its protection.
From this perspective, “sustainable leaders” will not be able to act alone, but will necessarily have to create synergies with the entire supply chain and the local community so that the organisational models adopted within the company to protect “green issues” do not remain confined to them and are instead supported by other organisations and the local area for more effective action.
For the development of the local area and the community in which the company operates, the new approach to business leadership must then also be based on solid ethical values, thus developing social sustainability, the second pillar of sustainable leadership.
With this in mind, leaders will be required to focus on fostering positive relationships between the organisation and society, understood as people: from employees to workers in the entire supply chain, to local communities and customers.
In particular, it will be necessary to adopt ethical business practices, promote diversity and inclusion, safety at work, invest in local communities through corporate social responsibility initiatives, promoting and protecting, more generally, basic human rights while also providing the necessary tools to prevent and, where appropriate, manage any negative impacts of business choices on people and their rights.
The third pillar of new leadershipis economic sustainability, understood as the balance between profit and public interest.
In this respect, the “sustainable” leader employs ethical governance criteria, adopts responsible management of financial resources, prioritises the development of the local economy, invests in research for technological innovation, all with the aim of improving the lives of the community, consumers and all stakeholders affected by the company’s activities.
This new way of “doing business” is of course not without its challenges as sustainable leaders have to change established business models. Moreover, in this context, the pressures to achieve a given financial outcome and generate short-term profits together with the complexity of certain issues, such as global climate change and inequalities, can naturally be a significant obstacle to a paradigm shift.
Precisely for these reasons, new leaders, in addition to possessing a mindset open to innovation and a strong capacity for continuous learning, will have to create a climate of general mobilisation and motivation towards sustainability, involving the entire corporate population and beyond.
This could be done by means of training courses, awareness-raising campaigns, reviews of organisations and, why not, of the remuneration structure by introducing, for example, variable incentive systems conditional on the achievement of certain sustainability targets.
Involvement on these issues should not, however, stop at the corporate level alone. Indeed, sustainable leaders must be able to effectively and consistently disseminate the company’s sustainability values outside the company as well, without falling into greenwashing.
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Worker’s recidivism also taken into account for purposes of correct legal classification of conduct within context of just cause for dismissal.
The Italian Court of Cassation, Employment Division, with judgment no. 15140 of 30 May 2023, returned to deal with the dismissal for just cause of a worker on a fixed-term contract for repeated negligence in the performance of the work, having been found to be recidivist in the negligent conduct, and who had already been sanctioned by disciplinary suspension.
The Court of Appeal, confirming the first instance judgment, rejected the appeal of the former employee, considering the existence of just cause underlying the dismissal imposed by the employer.
The first instance judgment was based on an assessment of the seriousness of the conduct and the proportionality of the sanction, with reference both to the provisions of the applicable collective agreement and to the employee’s specific recidivism.
The worker appealed to the Italian Court of Cassation, asking the court to overturn the judgment on the basis, among other things, of erroneous or misapplication of mandatory rule of law, to the extent that the dismissal fell within the case of dismissal ‘for poor performance’, and therefore a justified subjective reason and not ‘for just cause’.
The Italian Court of Cassation, in its reasoning rejecting the worker’s appeal, referred to its consistent case law according to which the assessment of the seriousness and proportionality of the conduct are the responsibility of the over-reaching and investigative activity of the Judge on the merits, which must refer on the one hand to the actual facts of the case, of an objective and subjective nature, and, on the other hand, the weighting carried out by the collective bargaining agreement. This is because ‘the scale of values expressed by the collective partners must constitute one of the parameters to which reference must be made to fill in the general clause of Article 2119 of the Italian Civil Code’.
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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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