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Dismissal for employee’s “transgressive” behavior

Published in: Employment law
by Antonella Marmo
Home > Dismissal for employee’s “transgressive” behavior

Although the judges’ assessment has changed over time, there are many cases in which employee behavior can be sanctioned with dismissal.

In this article:

A few cases from the early 1900s

In the early decades of the twentieth century, so-called summary dismissal for “transgressive” conduct was quite common.

Conduct that was considered so serious that employment could not be continued, for example, was:

  • engaging in “unorthodox” amorous relations with co-workers, even if outside the workplace(See, App. Messina May 24, 1962, in Or. Giur. Lav. 1963, 341);
  • disrespectful attitudes toward the employer, even held by the employee’s family members( See, App. Rome Dec. 11, 1964, in Riv. Giur. Lav. 1965, II, 33);
  • excessive indebtedness, beyond one’s income level, for reckless stock market transactions( See, Trib. Milan June 19, 1929, in Mass. Giur. Lav. 1929, 419);
  • the possession of drugs for personal use(Cass.9126/2018);
  • acting legally for a job role retraining(Cass. June 29, 1981, No. 4241).

However, the attitude of judges over the years has changed. Let’s see how and why.

The case of the employee attending the political rally

Over the past few years, the trend of jurisprudence seems to have changed. The Supreme Court has often taken a more tolerant attitude.

One significant ruling dates back to 2015 (Judgment No. 11504/2015). In this case, an employee of a company had participated in a political rally over the weekend, wearing a company-branded T-shirt.

The employer had fired the employee, claiming that participation in the political rally and wearing the company’s T-shirt could damage the company’s image and reputation.

The employee had challenged the dismissal, arguing that his participation in the political rally had occurred outside working hours and that the use of the company T-shirt was not for the purpose of representing the company there.

The Supreme Court held that the dismissal was unlawful, noting that participation in the political rally had not caused concrete harm to the company and that the use of the company T-shirt had not been a direct action by the employee to identify with the company in that context.

The game that allows you to virtually shoot bosses

However, an opposing case concerns the dismissal of a company employee who had created a Facebook game that allowed people to “shoot” representatives of the company itself.

In this case, the Milan Court of Appeals declared the employee’s dismissal legitimate, holding that the game constituted an attack on the dignity of the company and its representatives.

Social posts against the company and its leaders

The most recent Supreme Court ruling on the dismissal of employees for transgressive behavior during off-work hours dates back to 2021 (No. 31339/2021).

In this ruling, the Supreme Court upheld the legitimacy of the dismissal of an employee of a service company who had posted offensive comments on Facebook against colleagues and company management. The Court found that the employee’s behavior had harmed the company’s reputation and that, therefore, the dismissal was justified.

In particular, the Court stated that “the employee’s right to the free expression of personal opinion finds its limit in the duties of loyalty, diligence and fairness that the employee must maintain towards the employer, the employee’s behavior having to be considered to have harmed the dignity and honor of the company, in relation to its reputation and the image that it must preserve.

Hence, an employer may dismiss an employee for behavior that goes against the principles of fairness and good faith, even if it occurs outside working hours, but only if such behavior has a direct impact on job performance or the company’s reputation.

This ruling confirms the tendency of Italian jurisprudence to deem legitimate the dismissal of employees for transgressive behaviors during extra-work hours that have an impact on work performance or the company’s reputation.

However, as always, the assessment of the legitimacy of dismissal will depend on the specific circumstances of the case.

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Publication date: 22 March 2023
Last update: 7 September 2023

Antonella Marmo

A Lawyer at the Canella Camaiora Law Firm, a member of the Milan Bar, she focuses on Commercial and Employment Law.
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