On 1 March 2019 the Italian Supreme Court issued a decision (no. 6174) confirming that an employer was justified in dismissing an employee who repeatedly walked away from the workplace during working hours, without punching out to indicate he was leaving work temporarily, thereby pretending to be still working.
The employer ascertained such behaviour had taken place through the use of a detective agency, which found out that in a little over one month, the employee walked away from the workplace 13 times, remaining missing for periods from 15 minutes to more than one hour.
The employee challenged his dismissal as disproportionate, stating that he compensated by arriving before the official entry time. The Court held that this was irrelevant since the determination of the working hours is at the employer’s discretion, not the employee’s will.
Finally, the Court confirmed its previous rulings concerning the legitimacy of surveillance by the employer, including through the use of detective agencies, provided that these control mechanisms are aimed at verifying employee behaviour that could potentially amount to criminal offences or fraud or cause damage to the employer, and not at checking whether employees are carrying out their work, in light of the prohibition set out in Articles 2 and 3 of the Statute of Workers.
In this case, the Court stated that the surveillance activity carried out by the employer complied with the applicable legislation, including on the issue of privacy. The employee did not suffer any violation of his right to privacy since the detective agency followed him in public spaces and only for the purpose of establishing why he was walking away from the workplace.
In conclusion, it is in no way unfair or illegitimate to dismiss an employee who was discovered to have left the workplace during working hours without punching out, even if the employer monitored the employee using a detective agency, provided that the monitoring is aimed at uncovering criminal offences or fraud and that it complies with privacy law.
Likewise, in a more recent decision of 13 March 2019, the Milan Court adhered to the same principles expressed by the Supreme Court, above. The Court confirmed the legitimacy of monitoring performed by an employer (using a detective agency) on an employee who was entrusted to carry out on-site visits of clients’ stores and untruthfully recorded visits that never actually occurred. The Court concluded that this monitoring was legitimate since it was used to verify the recording of visits that were not performed rather than the employee’s method of performing the work activity. According to the Court, the employee’s behaviour constituted a severe violation of the obligations of good faith and decency and, as a result, the dismissal for just cause was a proportionate sanction, also considering that the employee’s behaviour was deemed to be severe misconduct in light of the social harm that it caused in the organisation (negative educational impact on the employee’s colleagues).
