HIDDEN RECORDINGS IN THE WORKPLACE ARE LEGITIMATE
29/05/2018
Court of Cassation, sez. Lavoro, sentence n. 11322/18
In order to defend himself against the allegations of his company, an employee gathers on a USB key recordings of various conversations that took place during working hours and in the workplace which also engaged other employees, without them knowing it.
The company, Alliance Healthcare Italia Distribuzione S.p.A, considers this behaviour illegitimate and contests the employee for having violated his duties regarding privacy.
By the end of the procedural dispute, the employer demands the employee’s dismissal; the employee appeals against it; the Courts rejects the application to be reinstated in his workplace; the Court of Appeal on the other hand, considers the expulsive measure illegitimate, as it is disproportionate to the contested facts. The Court of Appeal also states that the company must serve by effect of the convictions brought forward by the employee, an indemnity equal to 15 monthly instalments of the last overall remuneration, without providing his reintegration in the workplace, as compensation.
The employee and the company appeal to the Court of Cassation. The Court of Cassation upholds the action of the employee and requires the reintegration in the workplace, in addition to the compensation as it considers the disputed fact highly legitimate.
The Court of Cassation believes that the phonographic registration of a conversation among the present, respecting the genus of the mechanical reproduction that to art. 2712 cod. civ, is an eligible proof both in a civil and criminal trial.
According to the Court of Cassation the right of defence mustn’t be taken in consideration exclusively in court proceedings, as it can be extended to all the activities regarding the collection of proof that will eventually be used in such proceedings, even before the formal establishment of the controversy (through citation or appeal).
In this particular case, the employee had adopted all the necessary precautions to avoid the spread of the unauthorized recordings. The employee’s intentions were to safeguard his position in the company, compromised by unclear disciplinary arraignments, and to collect proof in advance, as he could have found himself without any means to protect his position being undermined by the behaviour of others.
All this in an environment characterized by a conflict among the employee and his high-ranking colleagues and by unheard recriminations about bad work organization.
The behaviour in question is legitimate, relevant to the employee’s defence argument and doesn’t go beyond his purposes, and as such it couldn’t incorporate both the criminal and the disciplinary offence.
Court of Cassation, sez. Lavoro, sentence n. 11322/18; judgement of May 10, 2018
In Italy, employees were protected by art. 18 of act n. 300/1970 (usually called “employees statue”), until 2014: workers unjustly fired could sue their employer for being reinstated to their job and for damages (salaries from firing to reinstating). So, if the judge had declared unlawful dismissal, companies had to pay years of salary and social security contribution, even if they didn’t’ get any job performance by fired employees (Italian trials were really slow). From 2015, this won’t happen anymore. In case of unlawful dismissal, employers will only have to pay damages to workers. This compensation will be reasonable: from 4 to 24 months of salary (2 months per year of working). Employees won’t have the right to be reinstated to their job, except for specific situations. So, if he doesn’t appreciate the worker, the employer won’t be obliged to readmit him in his company (except for racial, political and religious discrimination). According to new acts, civil trials are faster, thanks to their computerization. Now payment orders can be issued in a few days. Before, it took several months. Besides, debtors that refuse payments are obliged to pay default interest of 9%. So they have no incentive to delay payments: this would be too expensive. Creditors can ask the court for an order to search in public records debtor’s goods and current accounts to be attached (now access to records is allowed only to specialized agencies) . This new procedural instrument allows to attack debtor's assets more easily. Creditors will be satisfied effectively and more quickly. In this section of the website, we are going to show all this brandnew rules.
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