_Dismissal and e-mails. Ready for digital revolution?

Dismissal and e-mails. Ready for digital revolution?
By Andrea Savoia e Marilena Cartabia


In the middle of digital revolution, where there are not distance and where communications and news are so fast… What is the relation between new digital communication form and the dismissal communication?
Let’s give a look to new ruling cases in this field!

The Court of Cassation (Ruling case no. 5523, 8th March 2018), some days ago, stated as unlawful a manager dismissal because e-mails used, as a proof of irregular behavior of employee, was not certified in relation to their content and their author.
The Company, dismissed the manager because according to company investigations, he resulted responsible of several irregularities during a revaluation procedure. In that way, employee makes possible the existence of credit not due in favor of some other companies.
The Court stated that employer was not able to certainly proves complained facts against his ex-employee.
Indeed, dismissal was only supported on unreliable employee statements who were involved in the case and based on the content of several e-mails.
Indeed, the Court stated that “simple e-mails” have not equal legal value to private agreement (Art. 2702, Italian civil code) because their content and author could be modified and affected. And so, only certified e-mail communication (PEC) offers a guarantee of inalterability.
Moreover, “traditional e-mails” value are left to the discretion of the judge. In this case, the Italian Court of Appeal excluded the certainty that e-mail ware written by the dismissed employee.

Furthermore, the Court of Cassation (ruling case no. 29753, 12th December 2017) considered as lawful the dismissal of an airline pilot, at the end of probation period, even if it was communicated by e-mail.
In this case, the mean of communication was considered lawful by the Court, because the law does not provide the written form in case of dismissal at the end of probation period.
In addition, the Court stated that the written form, if required, could be considered respected by the use of any means of communication, as long as the communication is a materially sent to the recipient (by e-mail mean too!)
Furthermore, this decision confirms some precedents, where it has been considered lawful a dismissal communicated by text message or using WhatsApp.

Both ruling cases are ground-breaking and it seems that they take some steps forward technological adaptation.
The firs ruling case seems to be ground-breaking because focuses the attention on probative value of traditional e-mail. That is mean that employers have to carefully consider which kind of proofs wants to show, as dismissal basis.
The second ruling seems to be ground-breaking because considering lawful the dismissal communicated by the use Internet, enables employer to use new technologies in the field of dismissal communication to the employee.