The terrible effects of excessive behaviour: a modern point of view By Paola Gobbi and Marilena Cartabia It is lawful and justified to dismiss an employee who intimidates a supervisor in front of other colleagues, creating a hostile working environment, as recently decided upon by the Court of Cassation (Court ruling no. 26273, dated 6th November 2017). The facts. The case decided by the Judges concerns a University’s employee, performing clerical duties and previously suspended for 10 days for having violated his colleagues’ personal dignity, dismissed for threating his supervisor saying that “I’m going to beat someone with an hatchet because everybody is a pain in the neck!”, at the presence of his colleagues. The dismissal, challenged by the employee, was deemed lawful by the Tribunal in first instance and by the Court of Appeal of Rome as well. The employee challenged the latter Court ruling before the Court of Cassation for several reasons, all rejected. Threat against a supervisor: the risk of violation of art. 2087 of the Italian Civil Code, and duty to post the disciplinary code. Facing the employee’s claims, the Court took the opportunity to confirm some important law principles through the sentence’s reasons. With reference to the wrong analysis of the recidivism, as claimed by the employee, the Court stated that those last allegations themselves represent a just cause of dismissal. In order to evaluate the seriousness of an allegation, the Court remarked that the list of allegations justifying a dismissal, provided by the National Collective Bargaining Agreements, only represents an examples list, including and not limited to those allegations. Therefore, the Judge is always in charge to evaluate whether or not the facts alleged prevent the prosecution, not even temporarily, of the employment relationship, then representing a just cause of dismissal under art. 2119 of the Italian Civil Code. In order to evaluate the seriousness of the allegations, the Court of Cassation not only took into consideration the threats made by the employee, but also the fact that those threats were made in front of other colleagues creating a hostile working environment, and then put the employer in the position to violate art. 2087 of the Italian Civil Code. Indeed, according to the prevailing interpretation of art. 2087, in compliance with Art. 31, EU Charter of Fundamental Rights of the European Union (“every worker has the right to working conditions which respect his or her health, safety and dignity”), the employer shall protect the physical and moral integrity of his employees, ensure a peaceful working environment and guarantee credibility and authority of those in charge to manage and supervise the employees (Court of Cassation no. 14002/2013). With reference to the absence of a disciplinary code claimed by employee, the Court stated that it was not necessary, because the behaviour alleged to the employee could easily be considered as unlawful, violating the so called minimum ethics or criminal laws. In such cases, the violations made by the employee are so serious that he can realise on his own that his conduct is unlawful, regardless of the list provided by the disciplinary code (Court of Cassation no. 54/2017). With reference to the absence of the disciplinary code, the employer remarked that it was actually posted within the University intranet, other than within the premises of the “Personnel Division”. The employee contested such publications since the National Collective Bargaining Agreement in place at the time of the dismissal required the publication of the disciplinary code on the notice board as “mandatory and irreplaceable” . While in agreement with the employee in considering the online publication of the disciplinary code not equivalent to the publication within the company’s premises, the Court of Cassation deemed the dismissal lawful and effective considering the seriousness of the allegations, that renders the publication of the discipline code as not necessary. Finally, the employee claimed the violation of his defence right under art. 7 of Law no. 300/1970, since no defence hearing was granted to him. The Court rejected this claim as well, remarking that the employer postponed several times the defence hearing, that took place at the end of the illness period. Final comments. The Court Ruling herein commented is relevant for confirming that the lists of allegations provided by the National Collective Bargaining Agreements are just exemplifying and not mandatory, and that the previous publication of the disciplinary code is needed only for those allegations that do not represent a violation of the employee’s fundamental obligations. Furthermore, it is reasonable to expect a new interpretation related to the obligation of publication of the disciplinary code, that will consider the last technologies, considering that, in this case, the Court refused different form of publication of the disciplinary code only because the traditional publication on notice board was expressly provided by the NCBA. In this way, the Court Ruling herein commented should make us aware to the risk of alarming “fake news” to general and blanket ban of disciplinary code publicity different from (outdated) billposting on notice boards.
