With the recent judgment no. 21621/2018, the Court of Cassation intervened again on the difficult question concerning the legitimacy of an appeal, by the employer, regarding the supervision of an employee’s work activity by an investigative agency.
The case submitted to the Supreme Court concerned the appeal of a dismissal for a just cause, ordered because an employee, in the performance of his duties as an operator of the system of recording workers’ attendance, fictitiously registered his presence at work on a number of days, according to the results of checks carried out by the employer through an investigative agency.
In the first two judgments, the worker’s application for an appeal against the dismissal had been rejected.
However, the Supreme Court was not of the same opinion, and accepted the grounds of appeal by cassation, alleging the violation and misapplication of articles 2 and 3, L. no. 300/1970. The court held that "checks by accredited guards, or of an investigative agency, cannot, under any circumstances, examine the fulfilment or non-fulfilment of the contractual obligation of the worker to perform his work [...], but must be limited to unlawful acts of the worker not attributable to mere breach of obligation ".
With reference to the scope of the aforementioned articles 2 and 3 of the Workers' Statute, the Supreme Court has noted that these rules, which "limit to protect the freedom and dignity of the worker, in accordance with constitutional provisions and principles, the sphere of intervention of persons appointed by the employer in defence of his interests, for example for purposes of protection of the company assets (Article 2) and supervision of work activity (Article 3) [...], do not preclude the power of the company owner to resort to the collaboration of subjects (as, in this case, an investigative agency) other than accredited guards for the protection of company assets, nor, respectively, to check work performance and, therefore, to ascertain specific failings of employees, pursuant to art. 2086 and 2104 c.c., either directly or through their own hierarchical organisation ".
The Court of Cassation has reiterated the principle that checks by accredited private security guards or an investigative agency cannot "under any circumstances, either examine the fulfilment, or the non-fulfilment of the worker’s contractual obligation to perform his work", and are prohibited from attending the workplace for a check that involves the work activity of the employee: this duty is reserved by the art. 3, L. no. 300/1970 directly for the employer and his collaborators. (CP)
