For many years we have been discussing the difficult issue relating to a worker’s “Right to criticise” within the limits imposed by the so-called “Duty of loyalty“.
Jurisprudence continues to return to this subject due to the now prolific use of the internet and social networks.
The Corte di Cassazione (Supreme Court) articulates the principles as follows:
“A worker’s criticism (of their employer or colleagues) must represent facts corresponding to the truth. This criticism must be expressed in a measured way, even if the criticism is objectively offensive and subjectively unwelcome to the person to whom they refer (ex plurimis Corte di Cassazione 30 October 2017, no. 25759 – see Corte di Cassazione No. 465/1996 as well as Corte di Cassazione No. 5947/1997) “.
Here are some examples:
– The conduct of the worker who reports to the judicial authority criminal or administrative offences allegedly committed by the employer does not constitute just cause or justified subjective reason for dismissal, unless the complaint is, in some way, slanderous or there is no evidence of the existence of the offence (Corte di Cassazione February 16, 2017, n. 4125).
– Should an employee make negative remarks about their employer on Facebook, this might not constitute grounds for dismissal. In fact, this may render the employee’s dismissal illegal (See Corte di Cassazione May 31, 2017 n. 13799).
– On the other hand, the dismissal of the worker who used the company’s email to make offensive remarks towards other individuals in the company was considered entirely legitimate, as the action was seen as seriously damaging the bond of loyalty between the employer and employees (see Corte di Cassazione 10 November 2017, n. 26682).
– The Court of Busto Arsizio (February 20, 2018, n. 62) ruled that an employee’s tweets, expressing “contempt towards the company and its directors, representatives and potential business partners”, constituted an improper use of social media “so serious as to damage the trust between the company and the worker”. The dismissal was therefore deemed legitimate.
– A company’s disciplinary code and collective contract define violations relating to duty of diligence and loyalty of an employee to the employer. This includes limits of tolerance and the degree of gravity of any violation (pursuant to articles 2104 and 2105 of the civil code). They represent some of the parameters to which the judge must refer to in order to identify and define the notion of just cause for dismissal.
On this basis, the Supreme Court ruled on the legitimacy of the disciplinary dismissal of an employee for fighting with another employee, in the presence of customers, as a behaviour expressly specified in the national collective contract (Corte di Cassazione 20 May 2019, n. 13534).
– The Court of Florence has ruled that the dissemination of disparaging remarks made against a superior or a colleague in a private chat, does not justify dismissal. (Court of Firenze October 16, 2019). This is based on the assumption that “remarks made in private chats represent communication with limited access”. These chats are therefore unlikely to be disclosed in a larger social setting.
“This therefore leads to the exclusion of any intention to use denigrating language” (Corte di Cassazione N. 21965/2018).
Indeed, communication in a private group represents a lawful and constitutionally guaranteed right to private communication of ideas or information. This includes also the most technologically advanced forms of communication, such as conversations on platforms such as Whatsapp, Facebook, and Instagram.
From the wide range of decisions on this subject, we advise employers to act with caution when considering dismissal or other serious measures against an employee.
We strongly recommend employers seek professional advice on any actions to be taken against an employee who might have behaved in such a way as to damage the company’s reputation. Professional advice should also be sought when considering any disciplinary action for violations that might undermine the obligation of loyalty to a company.
We remain at your disposal for any further information relating to employees’ obligations of loyalty to the company and their right to freedom of expression.
6.10.2021