Employees who hold roles which require them to attend trade unions organs, shall have the right to benefit permits allowing them to join the relevant meetings, as well as the duty to use such permits only for the purposes to which they are granted. With Ordinance no. 26198/2022, the Italian Supreme Court stated that taking advantage of such a privilege in order to fulfil a personal need shall be deemed as an element aggravating the mere circumstance of an unjustified absence from the workplace, which worsen the sanctioning consequences to apply to such cases, leading to an actual abuse of right and justifying the dismissal of the employee involved. An employee of a company was appointed as member of a union workers body obtained a permit pursuant to Section 30, State of Workers, which allows employees belonging to said categories to leave the workplace in order to join the relevant meetings and still receive the normal remuneration for the whole duration of the permit. In the case at stake, however, the permit granted was undeniably used by the employee for personal reasons. On such basis, the employer dismissed the culpable employee for cause. Therefore, the involved employee challenged such decision before the competent Court, which deemed it legitimate, since the latter’s conduct did not fall within the general category of mere unjustified absence (punishable by sanctions of a conservative nature), but had to be identified as a more serious violation caused by the abuse of a right granted to the employee as a trade union representative and unjustly exploited to his own advantage and to the detriment of the company itself. Consequently, the dismissal of the employee was legitimate. The same assessment was then also confirmed by the Court of Appeal, also hearing the case. Lastly, the employee submitted the matter to the Italian Supreme Court, explaining that his conduct should have been classified as a simple unjustified absence from work, therefore sanctioned proportionally, as sanctioned by the NCLA applied to the employment relationship, which provides for the imposition of dismissal on an employee who is unjustifiably absent from work for a period of more than five days – which was not the case at stake, as stated by the employee, who claimed to have not been present at the workplace only for the duration of the permit, definitely less than five days. In assessing the circumstances of the case at hand in its Ordinance no. 26198/2022, the Italian Supreme Court confirmed the decisions of the previous judges who analyzed the case. In fact, the employee's conduct has been assessed as far more serious than claimed by the latter, since the Court took into consideration not only the mere absence from work, but the further abuse, perpetrated by the employee to the detriment of his employer, coinciding in the use of union leave for purposes other than institutional ones. This further element, according to the Supreme Court, means that the employee's conduct cannot be attributed to the collective rules that punish absence, failure to appear or unjustified abandonment of the workplace with a conservative sanction. The employee's attempt to identify the sanction of dismissal as disproportionate in relation to the conduct carried out, regardless of the reference to the rules of collective bargaining, was of no avail. In this sense, the Italian Supreme Court made it clear that the employee's actions had inevitable consequences on the trust bond connecting him to the employer, which unavoidably affected 'the entirety of the employee's possible future defaults'. The Italian Supreme Court’s Ordinance is particularly relevant, as it offers a new interpretation for the evaluation of the employees’ conducts while under disciplinary procedures. More specifically, it is necessary to dig deeper and evaluate their possible consequences on the entire employment relationship: the judges dealing with the case have, in fact, taken into consideration the employee’s fraudulent behaviour, looking beyond the mere economic damage potentially caused to the employer (who would have remunerated a permit actually used for personal reasons) and deciding to sanction the employee’s clear will to exploit for personal purposes the privilege granted to him by the Statute of Workers. The Supreme Court deemed that such behaviour was enough to break the trust bond between employer and employee, based on social rules of conduct, which shall necessarily be contemplated while dealing with employment relationship issues.
