ABSENTEEISM AND DOUBLE JOB
Among the many services that DBD Investigations offers, there is that of investigating any doubtful employee behavior, such as absenteeism or double work. The checks will be carried out with stalking strategies, to verify any illegal activities of the persons under investigation. These checks make it possible to dispel any doubts on the veracity of the justifications adopted by the absent worker, highlighting any cases of presumed illness and / or the presence of double work. There may be cases of unjustified absence, or the practice of double work, perhaps in competition with the company in which they officially work. If Dr. Di Bari Diego detects infringements of this type, he documents them with photographic and video material. In this way it will be possible to justify a dismissal in the trunk, and open the doors to a claim for damages against the employee in bad faith.
DEEPENING
The same applies in the event of abuse of the permits of law 104 or the use of parental leave for purposes other than those of looking after the offspring.
Judgment - Illegitimate dismissal, sick employee goes hunting
Supreme Court of Cassation Labor Section
Judgment 21 January - 28 February 2014, n. 4869
President Canevari - Speaker Maisano
CONDUCT OF THE PROCESS
With a non-definitive sentence published on 7 August 2008, the Court of Appeal of Rome, in reform of the sentence of the Court of Rome of 8 February 2005, declared the illegality of the dismissal for just cause ordered by B. s.p.a. to P.P. ordering the reintegration of the worker in the job previously occupied and condemning the B. to pay in favor of the worker, all wages from the moment of dismissal. The territorial court considered that the P., employee of B. with the duties of driver and security guard, had been fired following a disciplinary challenge for having been seen in hunter's clothes in three days in which he was absent from work due to illness. The same Court of Appeal considered that, having considered the medical certificates of illness to be true and not contested, the thesis of the employer remained unproven according to which the employee, carrying out the activity of hunter on days when he was absent due to illness, would have jeopardizing their own health, delaying recovery and causing the related damage to the employer; nor can it be said that such episodes would break the bond of trust in such a way as to constitute just cause for dismissal. B. s.p.a. proposes an appeal in cassation against this sentence entrusted to a single articulated reason. The P. resists with defense. The applicant filed a statement.
GROUNDS FOR THE DECISION
With the complaint, the violation and false application of art. 12 of the pre-laws in relation to arts. 1175, 1375, 2104, 2105, 2106 and 2119 cod. civ. with specific reference to the proportionality of the sanction, pursuant to art. 360, n. 3 cod. proc. civ., and contradictory and obvious superficiality of the motivation in relation to a controversial and decisive fact for the judgment. In particular, it is assumed that the Territorial Court would have focused only on the proportionality of the sanction without considering the violation of the duties of correctness, good faith, diligence and loyalty of the worker that would have been violated by the P. in the contested episodes. Furthermore, the Territorial Court would have erroneously ignored the potential damage to the recovery of the worker caused by his behavior, regardless of the actual occurrence of him. However, the appellant insists on contesting the judgment given on the proportionality of the sanction in consideration of the gravity of the alleged episodes.
THE APPLICATION IS NOT BASED
According to the constant jurisprudence of this Court, the performance of other activities, working and non-working, by the worker during the state of illness is capable of violating the contractual duties of correctness and good faith in the fulfillment of the obligation and to justify the withdrawal of the employer, where it is found that the activity carried out constitutes an indication of a lack of attention by the worker to his own health and to the related duties of care and not delayed recovery, as well as demonstrating the inability of the state of illness to prevent the '' performance of a play or work activity (for all Cass. 21 April 2009 n. 9474). The proof of the incidence of the different working or non-working activity in delaying or jeopardizing the recovery for the purposes of disciplinary relief of this activity during the illness, is in any case borne by the employer. The Territorial Court applied this principle of law correctly although it improperly drew confirmation of the absence of prejudice for the employer from the return of the worker at the end of the illness, a circumstance which is in itself irrelevant for the purposes in question as the assessment of lack of prejudice must be done ex ante. However, there is still a lack of proof of this prejudice which would have caused harm to the employer, so the conclusion reached by the Territorial Court in deeming the disputed dismissal not justified is still correct. As for the proportionality of the expulsive sanction, the principle also repeatedly affirmed by this Court must be remembered, according to which the judgment of proportionality between the contested violation and the measure adopted is substantiated in the assessment of the gravity of the non-fulfillment of the worker and the adequacy of the sanction, all matters of merit which, if resolved by the appellate judge with adequately justified factual appreciation with exhaustive and complete motivation, are exempt from re-examination in the legitimacy stage (most recently Cass. 25 May 2012 n. 8293). The appeal judge correctly assessed that the disciplinary offense committed by the worker, due to the lack of prejudice mentioned above, did not deserve the expulsive sanction for the loss of the fiduciary bond. This judgment, due to its logic, escapes any censure of legitimacy. The rejection of the appeal is followed by the condemnation of the appellant company to pay the legal expenses paid in the device.
P.Q.M.
The Court rejects the appeal; He condemns the applicant to pay the legal fees which he liquidates in E 100.00 for disbursements, plus E 3.500.00 for professional fees as well as legal accessories.
DISMISSAL FOR THREATENING AND INJURIOUS BEHAVIOR
COURT OF CASSATION – JUDGMENT OF 02 SEPTEMBER 2015, No. 17435
The worker challenges the dismissal imposed on him by the company by asserting the employer's persecutory behavior towards him. The court rejects the request and the Court of Appella confirms the sentence of the Court, affirming the legitimacy of the dismissal imposed on the same worker who, with his threatening and insulting behavior, had created a general climate of tension within the 'agency. Based on the investigation, the Court does not consider the persecutory attitude complained of by the worker proven, while it confirmed the existence of a climate of tension in the company that justifies the dismissal. The worker appeals to the Supreme Court against the sentence, articulating it on seven reasons:
FIRST REASON:
complains about the violation of laws, violation and false application of laws and legal principles; failure to examine a decisive fact of the case; articles 2119 cod. civ., 7 law n. 300 of 1970, 44 National Collective Labor Agreement for Pharmaceutical Companies, pursuant to art. 360, points 3, 4 and 5 cod. proc. civ. In particular, it is deduced that the dismissal would have been communicated beyond the peremptory term established by collective bargaining, a term to be considered integral to the essential element of the substantive rule of art. 2119 cod. civ .;
SECOND REASON:
it is alleged violation of laws, violation and false application of laws and legal principles; failure to examine a decisive fact of the case; articles 2 of the law n. 604 of 1966, 7 of law no. 300 of 1970, 44 paragraph 9 National Collective Labor Agreement for Pharmaceutical Companies pursuant to art. 360, points 3 and 5 of the cod. proc. civ. It is stated that the dismissal would be ineffective, since the company would have failed to provide specific reasons although ritually required pursuant to art. 2 of law 604 of 1966;
THIRD REASON:
assumes violation of laws, violation and false application of laws and legal principles; articles 2119 cod. civ., 5 law n. 604 of 1966, 111 of the Constitution, 99, 112 and 113 cod. proc. civ. ex art. 360, points 3, 4 and 5 cod. proc. civ. It should be noted that the company would have fired the worker for disputed episodes with a letter dated 19 December 2005; the worker allegedly challenged the dismissal as unfounded; the judges of merit would have instead considered it founded on the basis of a different letter of dispute of 9 January 2006 whose episodes were deemed by the company implicitly justified by the worker and, for this reason, never sanctioned;
FOURTH REASON:
complains about the violation of laws, violation and false application of laws and legal principles; articles 5 of the law n. 604 of 1966, 2119 cod. civ., 111 of the Constitution, 99, 112, 113, 115 and 116 cod. proc. civ. ex art. 360, points 3, 4 and 5 cod. proc. civ. It is stated that the Court of Appeal would have considered the facts underlying the dismissal to be well founded since the worker, not proving the discrimination of the provocations, implicitly would not have contested them, not emphasizing the fact that such evidence had been admitted for the different application compensation for damages from persecution, that no evidence had been admitted on the facts that led to the dismissal and that, by law, in any case, the burden of proof of the facts relating to the just cause of dismissal is borne by the employer;
FIFTH REASON:
assumes violation of laws, violation and false application of laws and legal principles; articles 5 of law 604 of 1966, 2119 cod. civ., 111 of the Constitution, 115 and 116 cod. proc. civ. ex art. 360, points 3 and 5 of the cod. proc. Civ. He complains that the Court of Appeal would have considered the facts underlying the dismissal to be well founded on the basis of statements made before and outside the trial and although contested by the worker, thus violating the rules of the trial;
SIXTH REASON:
complains about the violation of laws, violation and false application of laws and legal principles; defect of failure to examine a decisive fact for the judgment; articles 2119 cod. civ., 7 law 300 of 1970, 1 et seq. law 604 of 1966, 112, 113, 115 and 116 cod, proc. civ., 111 of the Constitution pursuant to art. 360, points 3 and 5 of the cod. proc. civ. In particular, it is deduced that the Court of Appeal would not have considered the provisions of art. 2119 cod. civ. which provides for the recurrence of objective and subjective elements to integrate a serious breach of the fiduciary bond, and would not have considered that the dismissal was totally devoid of evidence, therefore lacking the constitutive elements established by law, and would have considered the just cause to be integral to facts unrelated to the dispute and motivation formulated by the company itself, not proven in court and deemed justified by the company;
SEVENTH REASON:
it is alleged violation of laws, violation and false application of laws and legal principles; defect of failure to examine a decisive fact for the judgment; articles 2119 cod. civ., 27 of the Constitution, 1175 and 1206 cod. civ., 1 et seq. law 604 of 1966, pursuant to art. 360, points 3 and 5 of the cod. proc. civ. In particular, it is stated that the appeal judges would not have considered the essential and constitutive element of the just cause of dismissal constituted by the proportion between the disputed facts and the sanction, taking into account the subjective element of the conduct and the overall attitude of the worker .
THE CASSATION CONSIDERS THE PREVIOUS REASONS AS FOLLOWS
THE FIRST REASON AND THE SECOND REASON
are inadmissible. Since they are based on circumstances not dealt with in the contested judgment for which, lacking the indication of how the grievance was proposed in the previous degrees of merit, it must be considered that the reasons in question are new and therefore inadmissible since it is not allowed to raise in the legitimacy issues not previously proposed in the merit grades.
THE THIRD REASON
it is unfounded. In fact, the appellant argues that the judgment under appeal would have based its reasoning on the charges contained in the notice of 9 January 2006 for which the worker had never been sanctioned, while the dismissal was actually imposed on the basis of the different previous challenge. of 20 December 2005. In reality, the appellant confuses the two disputes which the contested judgment, in its clear motivation, considers in their exact scope, in the sense that the dismissal refers to all the facts contained in the two disputes of 20 December 2005 and of 9 January 2006. In light of this, on the one hand the applicant's assertion that the facts alleged with the second of the two disputes were not sanctioned is not correct, and on the other hand the statement contained in the same sentence according to which the appellant worker inferred nothing regarding the facts contained in p first dispute, dwelling only on the facts referred to in the second dispute, deducing, erroneously as mentioned, that for the same it had not been sanctioned.
THE FOURTH REASON
it is the result of an error by the worker who confuses the alleged facts, the burden of which is borne by the employer, with the persecutory attitude held by the same employer, whose proof is borne by the worker. In the case in question, the contested sentence found that the facts charged to the worker were not contested, and the persecutory attitude towards him was not proven by them. The contested sentence correctly applied the principle of law according to which, every time a burden of allegation is charged to one of the parties, the other has the burden of ascertaining the fact annexed in the first useful defense, having to, failing that , the counterparty is deemed to be peaceful and no longer burdened with the relative burden of proof (Cass. 12636/2005). The same Court of Appeal held, with a factual judgment that cannot be criticized here, that the worker did not contest the facts charged to him, indeed admitting them, considering them only justified as a reaction to the employer's attitude towards him, and concentrating his defense on the existence of a persecutory behavior that was deemed not proven, likewise with a factual judgment that cannot be criticized in the context of legitimacy.
THE FIFTH AND THE SIXTH REASON
are inadmissible as they refer to the evaluation of the evidence on facts that on the one hand have not been contested, and on the other have found confirmation in the documentary evidence acquired; statements, as mentioned, that cannot be criticized in terms of legitimacy except for incompleteness or illogicality which, in the specific case, do not exist.
FINALLY THE SEVENTH REASON
it is not founded. According to constant jurisprudence of this Court, the judgment of proportionality of the sanction constitutes a judgment of fact as such reserved to the judge of the merit and not censurable in the legitimacy stage if, adequately and logically motivated. In the case in question, among other things, the Court of Appeal also verified the legitimacy of the dismissal on the basis of the national collective bargaining agreement applicable to the case in question and which expressly provides for dismissal without notice for the behavior alleged against the worker in the case in question ( insulting or threatening behavior during the service, violation of any rule of law regarding the storage, sale or transport of medicines).
THEREFORE THE APPEAL IS REJECTED
The Court of Cassation highlights in its logical-motivational process that the dismissal is to be considered proportionate, especially because the employee was unable to demonstrate that his behavior was a reaction to a persecutory attitude on the part of the employer.