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The new article 18 does not apply to ongoing proceedings: The sending of 13,404 text messages in a year with a company telephone does not justify the employee being dismissed

The fact. The Italian Supreme Court held to be wrongful the dismissal of an employee who, using a company telephone, had sent 13,404 text messages of a private nature (for a total cost of roughly 1,600 Euros) in a period of ten months.

The question. In the case at hand, the trial judge found the plaintiff's conduct was not to have been such as to have irreversibly harm the bond of trust with his employer, also in light of the fact that similar circumstances had not been sanctioned by dismissal.

On the merits. The Court of Appeal had found that the employee had acted without deception or fraud and that the sending of the text messages could have been easily verified by the employer, who was a telephone company.

The damage was, moreover, not significant, since the employee had always expressed his willingness to compensate the employer (which had, in similar situations, been accepted, with the result that a lesser sanction had been imposed upon such employees).

The employee had, moreover, in over thirty years of service not received any complaint or been subjected to any disciplinary proceedings.

The disproportion of the penalty. The interpretation adopted by the Court of Appeal of Naples was also shared by the Italian Supreme Court, so that all the allegations made by the employer were rejected in their entirety.

The amendment of Article. 18 does not apply to pending litigation. The Employment Section of the Italian Supreme Court held that the Labor Law Reform introduced by former Employment Minister Elsa Fornero had introduced a new, complex and detailed set of provisions on dismissals, as well as introducing a seachange in the burden of proof to be discharged in unfair dismissal cases that led to the facts of a case being analyzed in a completely different manner, which was not compatible with their being applied immediately in the ongoing proceedings.

Different systems of protection. In particular, the Supreme Court pointed out that Law 92/2012 provides for distinct regimes of protection, depending on whether the dismissal is found to be discriminatory, the alleged conduct alleged is found not to have been proven or the contested conduct should have been punished with a lesser sanction (as provided for under the applicable collective employment agreements or disciplinary codes).

In these cases there is a continuing right of employees to be reinstated in the workplace and to obtain full compensation, ranging from damages for the losses caused by the termination of the employment relationship (of not less than five but not more than twelve months’ salary) to reinstatement.

In all other cases of proven unfairness of the dismissal for lack of good cause or justified grounds, the new paragraph 5 of Article 18 of the Statute of Employees provides only for an award of damages amounting to between 12 and 24 month’s salary (calculated on the basis of the salary which was, in fact, earned by the plaintiff in the last month of the employment relationship).

In cases, however, of non-compliance with the procedural requirements of Article 7 of Law 300/70, compensation for shall be between a minimum of 6 and a maximum of 12 months’ salary (always calculated on the basis of the salary which was, in fact, earned by the plaintiff in the last month of the employment relationship).

This post is also available in: Italian

Matteo Moscioni

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