With judgment no. 12688 dated May 9, 2024, the Court of Cassation stated that the whistleblower report made by the worker under Legislative Decree no. 24/2023 “removes from the employer’s disciplinary reaction all conduct which, although even relevant on a criminal level, is functionally related to the reporting of the wrongdoing.”
In this case, the worker, a public manager of a special company of the Municipality of Naples, legally contested the dismissal imposed on him for failing to challenge a tax assessment notice amounting to € 4,000,000, which was served to the employing company.
In support of his claim, the worker alleged the retaliatory nature of the dismissal, arguing that the real motive was to punish him for the report he made to the Italian Anti-Corruption Authority (ANAC) and the Prosecutor’s Office of the Court of Auditors of Campania, in which he “reported alleged irregularities attributable to the company’s leadership.”
The Court of Cassation reiterated that in cases of retaliatory dismissal, “the illicit, decisive, and exclusive motive requires prior verification of the non-existence of the formal reason given as the basis for the dismissal.” Specifically, the acceptance of a claim seeking the nullity of the dismissal is contingent on confirming “that the retaliatory intent had exclusive determining effectiveness in the decision to terminate the employment relationship, even concerning other facts constituting just cause or justified reason, without making a comparison between the different causal reasons for the termination.”
However, as previously noted, the report made by the whistleblower under Legislative Decree no. 24/2023 removes “all conduct functionally related to the reporting of wrongdoing from the employer’s disciplinary reaction” (Court of Cassation, judgment no. 14093/2023). In this case, the Supreme Court upheld the worker’s appeal, emphasizing “the context in which the disciplinary charge occurred,” specifically highlighting the following elements:
the reports made to ANAC and the Prosecutor’s Office of the Court of Auditors of Campania;
the temporal coincidence between the dismissal and the initiation of investigations into the entity’s managers;
the progressive demotion of the whistleblower;
further reports made by the worker concerning the retaliation suffered.
With ordinance no. 13764 dated May 17, 2024, the Court of Cassation stated that the conduct of a worker who publishes a denigratory post on their personal Facebook profile against the company constitutes just cause for dismissal, even if the publication occurs during the time period between the worker’s reinstatement order—issued following the contestation of a first dismissal declared illegitimate—and the actual resumption of work.
Specifically, the Supreme Court noted that the argument raised by the worker, claiming that the contested conduct could not have disciplinary relevance because it occurred before the resumption of work, could not be upheld.
According to the Court of Cassation, the reinstatement order “reactivates the obligations inherent to the employment relationship, which had remained dormant following the worker’s illegitimate dismissal.”
Therefore, disciplinary relevance applies to misconduct committed, as in this case, during the time period between the reading of the reinstatement order and the actual resumption of work.
On this basis, the Supreme Court rejected the appeal filed by the worker and confirmed the legitimacy of the dismissal sanction.
By ordinance dated April 15, 2024, no. 10120, the Court of Cassation affirmed that corporate use has the same effect as a company-level collective agreement and, therefore, survives the transfer of a business when the transferee company lacks a supplemental company-level agreement.
In this case, the workers involved in the business transfer filed a claim before the Judge seeking to obtain from the transferee company the payment of the bonus that, by corporate use, was paid to them annually by the transferor company.
According to a well-established jurisprudential orientation, corporate use constitutes “a source of a unilateral obligation of a collective nature on the part of the employer, which operates at the level of individual relationships with the same effect as a company-level collective agreement, replacing the contractual and collective clauses in force with the more favorable provisions of the corporate use, pursuant to art. 2077, paragraph 2 of the civil code.” The Court of Cassation pointed out that “the right recognized by corporate use does not survive a change in collective bargaining following the transfer of a business, as it operates like a supplemental company-level agreement and shares the same fate as the collective agreements applied by the previous employer and is no longer applicable to the transferee company if it has its own supplemental collective agreement.” From this principle, it follows that “corporate use, however, survives when the transferee company does not have its own supplemental company-level agreement.”
In this case, the transferee company failed to prove that it had a supplemental company-level agreement, and for this reason, the Supreme Court confirmed the workers’ right to continue receiving the bonus.
With the judgment dated February 20, 2024, no. 7413, the Court of Cassation reaffirmed the established jurisprudential orientation according to which, in the case of an injury, even reckless behavior by the worker “if carried out while they are engaged in the work assigned to them, can only be considered abnormal if the employer has fulfilled all the obligations imposed on them regarding workplace safety.”
In terms of accident prevention, for the worker’s negligent behavior to be considered abnormal and sufficient to exclude the causal link between the employer’s conduct and the harmful event, “it must involve an eccentric or exorbitant risk beyond the scope of risks managed by the individual responsible for safety.” Therefore, negligent, imprudent, and inexperienced behavior exhibited by the worker while performing their assigned duties may constitute an “eccentric risk,” excluding the employer’s liability, only if the employer “has also taken precautions specifically aimed at regulating and managing the risk of imprudent behavior. Only in such a case can the event be attributed to the worker’s negligence rather than the safety guarantor’s conduct.”
In the case at hand, the employer had not in any way prohibited the use of a scaffold, which could only be climbed using the uprights, thus violating Article 138, paragraph 4 of Legislative Decree no. 81/2008, which prohibits the use of scaffolds that require climbing along the uprights, as the injured worker had been forced to do.
For this reason, the employer was found liable for failing to “fulfill all the obligations imposed on them regarding workplace safety.” The “alternative required conduct” should have consisted of “the construction of a scaffold equipped with proper access ladders or, alternatively, the provision of specific signage prohibiting its use.”