_Lawful dismissal regardless of the damages caused

Lawful dismissal regardless of the damages caused

by Marco Tesoro


Through the Court Ruling no. 24014 dated October 12th, 2017, the Court of Cassation defined the notion of just case of dismissal and proportionality between the dismissal and the allegations, with reference to a disciplinary procedure regarding theft.


The case

The case evaluated by the Court of Cassation regards a dismissal for just cause, served to a supermarket employee appointed to fill the shelves who was caught, thanks to the EAS tag, with candies for a total value of € 9.80.

The Tribunal of Naples as well as the Court of Appeal rejected the employee’s Court Claim challenging the dismissal.

The employee then challenged the decision before the Court of Cassation, claiming that the Court of Appeal did not take into consideration the low value of the stolen goods, that this was his first disciplinary procedure and that the allegations were not completely proved by the employer.


Seriousness of the behavior and proportionality of the sanction

A part from the last claim, considered not-admissible by the Court, it is interesting to focus on the arguments raised by the Judges of the Court of Cassation while deciding this case, aimed to ascertain the just cause of dismissal and the proportionality of the sanction.

According to the Judges, in order to evaluate whether or not there is a just cause of dismissal, it shall be considered i) the nature and utilities of the relationship, ii) the positions of the parties, iii) the level of trust required by the duties assigned to the employee, iv) the damages caused and v) the specific features of the facts alleged meaning the related circumstances, reasons and intention level (Court of Cassation no. 1977/2016, Court of Cassation no. 1351/2016, Court of Cassation no. 12059/2016).

With reference to the latter, the Court of Cassation remarked that the difference between the specific intention to commit a crime and the generic misconduct is not relevant because, in light of a general evaluation that evaluates all the aspects of the case, even a simple misconduct may be able to irremediably violate the fiduciary relationship between the employee and the employer (Court of Cassation no. 13512/2016, Court of Cassation no. 5548/2010).

With specific reference to disciplinary procedures on theft, the Court of Cassation remarked that the level of seriousness of the allegations shall be evaluated regardless of the economic damages caused to the employer, if any.

On the contrary, what matters according to the Judges is the seriousness of the objective fact alleged, to be evaluated in light of the possible worth that it may have with reference to the future behaviors of the employee, and therefore with reference to the employer’s trust.

The Judges remarked that the facts alleged shall represent a serious violation of the employment relationship’s elements – in particular, the trust duty – to the extent to question the future correct execution of the duties and tasks assigned.

By applying the abovementioned principles, the Court of Cassation agreed with the Court of Appeal in considering the seriousness of the allegations and the dismissal as a proportionate sanction in this case, in light of i) the particular company’s organization, providing goods on the shelves, ii) the employee’s duties and tasks, providing direct contact with the goods, iii) the employee’s fraud intent, proved by the fact that he simply put the candies in his pocket, believing he could not be caught because there was no traditional and visible EAS Tag on the goods.

Considering the latter aspect, which remarks the employee’s premeditated fraud intent, it is reasonable for the employer to believe that the employee can no longer be trusted in the future, and this belief justifies the dismissal, regardless of the fact that the stolen goods worth was lower than € 10.



In light of the Court of Cassation line of reasoning described above, the low worth of the stolen goods is not enough to exclude the seriousness of the employee’s behavior as provided by art. 2119 of the Italian Civil Code, confirming the major Case Law (lastly, Court of Cassation no. 18184, dated 24 July 2017, that considered lawful the dismissal served to a supermarket cashier for accruing, on her own fidelity card, the clients’ points. According to the Court of Cassation “the Tribunal correctly considered the dismissal as a proportionate sanction given the trust duty related to the cashier’s tasks and the objective and subjective seriousness of the behavior, since she voluntarily and repeatedly violated the company policy, being aware to do that. In light of the above, the low worth of the economic damages caused to the employer and the fact that it was her first disciplinary procedure do not matter, instead what matter is whether or not, according to the overall evaluation of the behavior, it is reasonable for the employer to believe that the employee can no longer be able to correctly perform her job in the future