_The Reciprocity of the Good Faith Principle

The Reciprocity of the Good Faith Principle
By Sharon Reilly and Silvia Fumagalli


Through two recent Court Rulings on two individual dismissals, the Supreme Court of Cassation has confirmed the relevance of the good faith principle in the employment relationships, applying for both the employer and the employee.

Through Court Ruling no. 9339, dated April 16th, 2018, the Court of Cassation ascertained the employer’s violation of the good faith principle for refusing the employee’s request of holidays and then holding the employee responsible for unjustified absence, being proved in Court that the employer knew the holidays request was grounded on serious family problems.
Therefore, according to the Court of Cassation the dismissal was unlawful, since the employer terminated the employment relationship being aware of the employee’s problems and then violating the good faith principle, regardless of the misconducts listed by the NCBA.

However, the good faith principle applies to the employees as well, as confirmed by the Court of Cassation through Court Ruling no. 6789, dated March 19th, 2018.
In this case, the Court of Cassation confirmed the previous Court judgment – fully grounded then not subject to further interpretation – who considered the employee’s behaviors as a violation of public morality or common civil rules, eliminating the fiduciary relationship between the employer and the employee, then justifying the dismissal.

In light of the above, it is important to carefully evaluate the charges taking into account that, on one hand, the intentional behavior charged shall be proved by the employer and, on the other hand, if the existence is proved, that can be the element confirming the seriousness of the employee’s behaviors, justifying the dismissal.