Legitimate dismissal (for poor performance) only if the employee is informed in advance of the requirements to be met

Legitimate dismissal (for poor performance) only if the employee is informed in advance of the requirements to be met

(By Enrico Vella, Trifirò & Partners Law Firm)

With Ordinance No. 24722/2022 of 11.8.2022, the Supreme Court of Cassation, ruling on the legitimacy of a dismissal imposed for poor performance, takes the opportunity to emphasise a principle of law and a rule of the Workers’ Statute, which, in light of the entry into force of Legislative Decree No. 104/22 (now known as the “Transparency Decree”) seems to be particularly topical.

In fact, in the wake of the prevailing jurisprudential orientation, it is pointed out that the employer must make it known in advance and in a clear and transparent manner to all workers, the rules of conduct (including organisational and technical-productive rules) that could have relevance at a disciplinary level, by posting in a place accessible to all, the so-called Disciplinary Regulations.

This case, that led to the adoption of the most severe disciplinary measures stemmed from the fact that over a period of about two years, the employee received various allegations of poor performance and related disciplinary measures of suspension from service and pay, which then led to dismissal due also to recidivism. The termination of employment was justified by ‘deliberate slowness in performing the entrusted task’, together with repeated and protracted behaviour.

During the first instance proceedings (both in the summary stage and in the subsequent opposition stage, being the “Fornero rite”), the dismissal had been deemed lawful, as the court ascertained that over time the employee had actually worked with a performance equal to or less than 50% of the average of the department to which he belonged.

The decision of the Court of First Instance was challenged before the Court of Appeal of Rome, which, delving into certain legal aspects, held on the other hand, that the dismissal should be declared illegitimate, since the employer had not provided proof that the Disciplinary Regulations had been prepared and posted.

The Court of Appeal, in fact, emphasised that the conduct complained of did not fall within the scope of mere fundamental obligations of the employee (the so-called ‘ethical minimum’), but was to be linked to a specific technical rule of productivity in that it was ‘linked to a certain average standard set by the company on the basis of its production organisation and the average achieved by other employees with identical tasks’.

Because of the specificity of this provision, the employer should have informed the employee in advance of the disciplinary relevance of this requirement within the framework of the Disciplinary Regulation and under Article 7 of the Workers’ Statute. The matter was submitted to the Supreme Court of Cassation for examination, with particular reference to the profile of the discharge of the burden of proof.

In this context, the Supreme Court confirming the correct interpretation followed by the Court of Appeal of Rome, took the opportunity to reiterate the centrality of the Disciplinary Regulations in the context of the employment relationship and the need for them to be prepared and brought to the attention of the workers in advance, pursuant to Article 7, paragraph 1, of the Workers’ Statute. In this way, the company regulations set the limit of conduct that the worker may not exceed.

The judgment in question is now in line with the prevailing jurisprudence that confirms the illegitimacy of the sanction imposed in the absence of the Disciplinary Regulations, in cases where the offences do not derive from the violation of criminal regulations or do not contrast with the so-called ‘minimum ethical standards’. In the latter cases, in fact, dismissal would certainly be lawful even if the conduct on which it is based is not expressly sanctioned in the disciplinary code.

The onus is then on the employer to inform employees of the rules of conduct in the company; to this end, generic provisions will not suffice, and the provisions must be appropriately publicised and periodically updated.

This also applies to all company policies in general, such as for example, those concerning the use of social networks, e-mails and IT tools in the workplace, which are now increasingly the focus of judgments on dismissals and disciplinary sanctions.

As said, everything naturally has a limit; in fact, if the violation is so serious as to be in conflict with the obligations of diligence and loyalty dictated by Articles 2104 and 2105 of the Civil Code or by other national laws (such as those on criminal matters), the information requirement is guaranteed by the same publicity of the regulatory sources. In court, the employer will have to prove that the employee was made aware of the Disciplinary Regulation. For this reason, it is no coincidence that many companies give the employee a copy of the disciplinary code at the time of employment and have them sign it for acknowledgement of receipt.

In this context, the ruling under review stands out for the fact that it clarifies that a worker’s poor performance does not fall within the scope of the aforementioned ‘ethical minimum’; the employee’s voluntary and repeated lack of productivity, therefore cannot, in the opinion of the Judges of the ‘Palazzaccio’, constitute a generic breach of the duty of fairness and diligence.

The ordinance under comment, as mentioned above, at this particular time when the so-called “Transparency Decree” has now come into force, seems worthy of particular attention. In fact, the principles expressed therein seem to recall those of transparency and clarity that the national legislator, with Legislative Decree 104/2022, in transposition of European Directive no. 2019/1152, wanted to introduce in a strict manner in the context of the employment relationship and on which recently there is much discussion, also in light of Circular no. 4 of 10 August 2022 adopted by the National Labour Inspectorate in agreement with the legislative office of the Ministry of Labour.

In this regard it is worth recalling that, according to the indications provided by the inspectorate, information relating to the discipline of the employment relationship, in addition to that which is the subject of an agreement between the parties, may be communicated by means of an additional note containing even a mere reference to the general regulations (first and foremost, to those contained in the applicable collective labour agreement), provided that the latter is simultaneously delivered in copy to the employee or made available to them in accordance with company practice.

Apart from the operational simplifications that certainly facilitate the tasks, there is no doubt that both the ‘Transparency Directive’ and the order of the Court of Cassation under consideration invite companies to take as much care as possible from the moment of recruitment, to exchange information with their employees so as to put them in a position to know the rules governing their relationship, as well as their rights and duties, including those that could lead to dismissal.

As they say: “clear pacts, long friendship!”

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