Withdrawal of employment by the employer is possible even in relation to criminal acts unrelated to work activity.
The Court of Cassation has recently ruled the legitimacy of dismissal for just cause of workers who have been convicted in criminal proceedings for criminal behaviour unrelated to work, but such as to create doubts about the reliability of the relationship of trust that is necessary between the employer and his employee.
The employer's withdrawal can normally take place when the sentence of conviction becomes final. However, it can occur even before the final judgment if the crime is particularly serious and such as to make it impossible to continue the relationship, even temporarily (see the order of Cassation No. 6937, filed on 20th March 2018).
Thus, the stance of the Supreme Court is confirmed, according to which the presumption of not guilty until the final conviction, as sanctioned by the second paragraph of the art. 27 of the “Carta repubblicana” (Republican Charter), concerns the guarantees relating to the implementation of punitive claim by the State. Therefore, it cannot apply, by analogy or extension, to the exercise by the employer of the right of withdrawal for just cause due to extreme criminal behaviour of the worker that negatively affects the relationship of trust.
This stance is affirmed by the Supreme Court, even if the collective labour agreement provides for disciplinary dismissal only in connection with a final sentence of conviction.
The judge who rules on a challenge of a disciplinary dismissal for a just cause as a result of the indictment or the conviction of the worker for serious crimes potentially affecting the fiduciary relationship - even if not committed in the performance of the relationship - must not be limited to applying the penal sentence, whether or not it has become final. Instead, they must ascertain the actual existence of the criminal offences and their suitability to justify, for their subjective and objective profiles, the imposition of an expulsive disciplinary sanction (see, among many others, Cass. 21st September 2016 No. 18513 and Cass. January 12th 2016 No. 281).
The existence of a final criminal sentence is, of course, not necessary to legitimise the disciplinary dismissal of the employee who has been responsible for criminal conduct relevant to the performance of his job duties (among others, Cass. 28th September 2016, No. 19183 and Cass. 18th February 2015, No. 3238). (LC)
