INAPPROPRIATE USE OF COMPANY E-MAIL AND DISMISSAL

INAPPROPRIATE USE OF COMPANY E-MAIL AND DISMISSAL: THE NOTION OF JUSTIFICATION IN EXECUTIVE EMPLOYMENT RELATIONSHIPS.

The case.

The Court of Cassation, in its judgement no. 2246 of January 26, 2022, sets out important principles aimed at guiding the interpretation of the category of justification of the dismissal of the executive officer.

The judgment in question has its origins in the appeal lodged by a manager aimed at obtaining a reform of the judgement on the merits of the case. In particular, the manager in question had appealed to the Court in order to obtain the declaration of illegitimacy of the employer's termination, with consequent condemnation to the payment of the indemnity in lieu of notice and of an additional compensation sum.

The expulsion measure was imposed as a result of disciplinary proceedings concerning the sending by the appellant of an e-mail addressed to the employer with the following literal content: "You have betrayed my trust and good faith and I do not know how long I will be able to go on putting up with this behaviour that I consider unspeakable". Although the court of First Instance did not consider the behaviour to be adequate to fall under the hypothesis of a just cause of the art. 2119 of the Italian Civil Code, it nevertheless deemed the termination to be legitimate, given that it was supported by the so-called "justification" and thus precluded payment of additional indemnity, giving rise only to payment of indemnities in lieu of notice.

This decision was confirmed by the Court of Appeal of Bologna and, therefore, the manager appealed to the Court of Cassation, invoking the violation and misapplication of Articles 19 ("Arbitration Board") and 22 (i.e. "Termination of employment") of the CCNL Dirigenti industria concerning the protection in case of dismissal. In the light of this, he reiterated how the conduct charged to him could not legitimise the dismissal, assuming that it could not be considered as case of just cause or justification, as it was a single episode not adequate – he stated - to damage the relationship of trust established with the employer. In the light of this, the appellant insisted on a re-evaluation of the concept of justification, assuming its flexible nature in the absence of specific case law. 

The Supreme Court, remaining congruent with the orientation already expressed in the judgment no. 34736 of 30 December 19, stated that the concept of justification does not require a specific verification of the individual conduct (unlike the just cause). It considered that, in order to evaluate the adequacy of the behaviour for a dismissal, all circumstances, which have compromised the relationship of trust at work, should be assessed. The requirement of a comprehensive evaluation is due to the intensity of the relationship between the employers and the executive officer. The Supreme Court has thus reiterated the relevance of any reason suitable to support the dismissal, provided that they really exist and that the decision of dismissal was not taken arbitrarily.

The Law

For a better understanding of the Court's decision, it is first of all important to underline the role of the manager within a company, traditionally defined as the 'longa manus' of the entrepreneur.

The Article 1 of the CCNL Dirigenti industria (National Collective Labour Agreement for Industry Managers) provides a definition of manager, stating that: "Executives are employees subjects to the conditions of subordination referred to in Article 2094 of the Civil Code and who play a role in the company characterised by a high degree of professionalism, autonomy and decision-making power and they carry out their functions in order to promote, coordinate and manage the achievement of business objectives.”

This legal definition makes clear that the executives have an apical role in the company and that, consequently, it leads to the development of an intense trust relationship between employers and managers.  This particular bond is at the base of the present Court’s decision. The justification, in fact, is only relevant in the context of the managerial employment relationship, characterised by a more intense trust than the "traditional" subordinate employment relationship relating to employees.

In fact, the dismissal, in the context of an employment relationship, can only take place for just cause and justified reason (objective or subjective), as the Italian law provides. On the other hand, the concept of justification has been developed by collective bargaining only with reference to the management category.

With regard to the case in question, the manager was dismissed for just cause pursuant to Article 2119 of the Italian Civil Code, which provides: "If a cause arises that does not allow the continuation, even temporary, of the relationship…". Although the rule does not mention specific cases, any obligation to give notice because of the considered assessment of the conduct, which precludes the continuation of the relationship, even temporarily, is excluded in conformity with unquestionable case law.

In fact, the case of just cause includes not only serious breaches of contracts or law, but also those facts or behaviours which, although direct unrelated to the relationship, may affect the bond of trust between employer and employee.

The concept of justifiability is, however, broader than that of just cause. The just cause is given by a fact that is suitable to seriously damage the relationship of trust. The justifiability can be given in the presence of valid reasons free from arbitrariness. The justification is based on the concept of fairness and good faith, in conjunction with the special relationship of trust established between manager and employer, thus going beyond the scope of the mere fulfilment of contractual obligations and the ordinary trust, typical of the employment relationship tout court.

On this point, it is worth recalling concrete cases in which the dismissal turned to be justified in the light of case law, such as, ex multis, the manager's inadequacy with respect to initial expectations, the non - compliance with the employer's general directives or non-work-related conduct capable of having a negative impact on the company's image.

Conclusions

In the light of the foregoing arguments, the statements made by the manager in this case were thus assessed as adequate to be conceived as case of justification for the dismissal, and the employer's decision was considered as consistent and based on reasons recognised by the Italian law.