_Limits to the employee’s right to criticize

By Paola Gobbi and Silvia Fumagalli

Just a few days ago, the Court of Cassation released the motivations behind an interesting ruling on the limits of the employees’ “right to criticize”. Such ruling results even more interesting if we stop and think about the new digital channels that give everybody the opportunity to express their own opinions and judgments, potentially reaching out an indefinite number of people.

The case, decided by the Court on January 18, 2019 (ruling no. 1379/2019), dealt with the dismissal of an employee who was charged with submitting a letter to the press accusing its company’s board of director of mismanagement acts, aimed to facilitate the competitors.

After reaffirming the existence of the employees’ right to criticize, the Court added that it is always necessary to verify if such right has been exercised respecting three fundamental limits, the same that apply to the right to chronicle.

According to the first limit, so-called “substantial continence limit”, the employee, when moving a critic, shall verify that the facts “narrated” are correspondent to truth: it does not mean that such facts shall be incontrovertibly true, but it means that the employee believes such facts are true after a careful evaluation.

According to the second limit, so-called “formal continence limit”, the employee shall express its critics using only appropriate and moderate expressions, respectful of the others’ dignity, which means that all those expression that, also due to their vulgarity, affect the employer’s honor and the reputation shall be “banned”.

Finally, under the third limit, so-called “restraint limit”, the right to criticize can be legitimately exercised when another legal asset is at stake, as, for example, the working and company’s conditions.

If the employee violates such limits – even only one – the exercise of the right to critic cannot be considered a valid cause of justification for his behavior that (given the duty of loyalty toward the employer) can be deemed to irremediably breach the fiduciary duty (and so grounding a dismissal for just cause) or to represent a serious violation of the employee’s obligations an duties (and so grounding a dismissal for subjective justified reason).

The rules reiterated by the Court of Cassation shall be deemed to apply also in those cases, extremely common today, when the critic is expressed on the Social Networks or using other telematics channels: the fact that the employee is using a communication tool does not exonerate him from respecting the abovementioned conditions.

Moreover, the choice of using a channel that can potentially reach out an indefinite number of people (as, for instance, the Facebook’s wall) makes easier for the employee to exceed the abovementioned limits, which means that, most likely, his critics will be read as a mocking toward his employer which might breach his honor and reputation. The employer, in the light of the circumstances of the case, might deem that the employee’s behavior represent a serious violation of his loyalty duty and sanction him with a dismissal for just cause (see also Court of Cassation, ruling no. 2018/10280).

In conclusion, when an employer gets criticized, he shall evaluate if the critics exceed the abovementioned limits and, in the most serious cases, he can proceed sanctioning his employee’s behavior with a dismissal. Employees, beware: “silence is golden”.