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Sexual assault conviction. Is dismissal lawful?

Published in: Employment law
by Antonella Marmo
Home > Sexual assault conviction. Is dismissal lawful?

As part of a landmark ruling, the Employment Section of the Italian Supreme Court, in its May 23, 2023, No. 14114 decision, examined the complex issue of the legitimacy of an employee’s dismissal following a criminal conviction for past conduct (sexual assault) unrelated to the work context. In this article:

The case: sexual assault and dismissal.

This topic of undeniable delicacy and social relevance, finds important clarification in the recent May 23, 2023, ruling No. 14114. The Italian Supreme Court, in a decision capable of leaving a significant imprint in jurisprudence, overturned the appellate decision upholding the validity of an employee’s dismissal for just cause. The incriminating fact concerned a sexual assault on a minor, perpetrated years earlier, in a context unrelated to the individual’s work life.

This decision marks a turning point, recognizing the importance of a worker’s personal conduct outside the workplace as a potentially influential element in the employment relationship itself. Looking further into the context of the case, it emerges how both the Court of Ancona and the subsequent Court of Appeals originally rejected the legitimacy of the worker’s dismissal. The incident, although extremely serious, had taken place several years earlier and completely outside the scope of employment. These circumstances had led the judges at both instances to find the dismissal inappropriate, and thus ordered the worker’s reinstatement to his former job.

The Ancona Court of Appeal, in particular, had emphasized two elements in its reasoning. Firstly, the isolated nature of the incident (in fact, the worker had not shown any other behavior of such seriousness during that long period of time). Secondly, the considerable amount of time (13 years) that had elapsed since the event. These two factors had led the courts to consider the challenged conduct not serious enough to warrant dismissal for cause.

The Italian Supreme Court, however, overturned the situation. Let’s see how and why.

The Italian Supreme Court's reasoning on timeliness

Disagreeing with the appellate ruling, the employer took the matter to the Italian Supreme Court. This move put the magnifying glass on a number of complex and crucial issues. It not only concerned the interpretation and application of the Italian Civil Code and the National Collective Labour Contracts, but also the dynamics of the proceedings and the assessment of the severity of the employee’s criminal conviction.

In the course of the proceedings, the discovery of the details of the sexual assault enacted by the worker, dating back 13 years, had a relevant impact on both the justification of the dismissal, i.e., the justification of the reason for dismissal, and the timeliness of the dismissal, i.e., whether the dismissal was carried out in a reasonable time after learning of the worker’s conduct. According to the Court, “in assessing then the temporal distance between the fact and the impact on the fiduciary bond, the Court of Merit should have taken into account the moment when the company learned of the fact never before communicated to it.”

In addition, the appeal to the Italian Supreme Court raised questions about the extent of the influence of the employee’s behavior while off work on the employment relationship and the trust between employer and employee.

The reference National Collective Labor Contract (CCNL) also played a crucial role in all of this. The Court pointed out that “the Court of Merit neglected to consider that under Article 54, paragraph VI letter h) of the CCNL of (Omissis), the disciplinary sanction of dismissal without notice applies in the case of ‘conviction that has become final for conduct committed not in connection with the performance of the employment relationship, when the facts constituting a crime may in any case be relevant for the purposes of the injury to the fiduciary relationship.”

The Supreme Court thus decided to uphold the company’s appeal, highlighting the critical role of the fiduciary relationship in the employment relationship: the Court made it clear that, regardless of the context in which it had been committed or the time that had elapsed, sexual assault on a minor constituted an extremely serious crime, according to widely accepted ethical standards. This type of wrongdoing, if unknown to the company, can seriously weaken the fiduciary relationship between employee and employer, even to the point of justifying its rupture.

Practical tips for employers

By overturning the appellate ruling and recognizing the legitimacy of the dismissal, the Italian Supreme Court affirmed the fundamental importance of the fiduciary bond in the employment relationship. This decision further clarified that the seriousness of an offense committed by an employee can affect the employment relationship, regardless of the context or time elapsed since the event.

However, it is crucial to emphasize the importance for employers to act promptly as soon as they become aware of misconduct by their employees.

Indeed, the immediate action taken by the employer as soon as it became aware of the prior wrongdoing (child sexual assault) should be considered here. This promptness justified the seriousness of the consequences associated with wrongful conduct, justifying the breaking of the fiduciary bond with the aim of maintaining integrity and balance within the work environment.

Let us not forget that the employment relationship is based on mutual trust and, once compromised, can lead to the termination of the relationship.

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Publication date: 8 August 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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