In two recent decisions (no. 23600 of 28 September 2018 and no. 30122 of 21 November 2018) the Italian Supreme Court confirmed that an employee who does not refuse to execute an unlawful order from a superior can be sanctioned by dismissal for cause.

For such a dismissal to be legal, the employer must prove that the employee was definitely aware of the illegitimate nature of the order because:

• it was contrary to general orders or instructions the employee had already received;
• it conflicted with the company’s procedures;
• it was contrary to the duties of diligence and loyalty typical of the employment relationship, or in any other way contrary to the company’s interests.

In decision no. 23600 of 28 September 2018, the litigation arose from a dismissal by a gas distribution company of an employee who, obeying the orders of one of his managers, falsified entries in the company’s computer system to show the execution of work never actually carried out.

In the second phase of the case (Court of Appeal of Rome), the dismissal was declared unlawful because the employee’s behaviour could not constitute a just cause for dismissal. The Court of Appeal held his conduct should have been considered devoid of bad faith and guilt, because the employee had limited himself to executing orders received from a superior in a meeting that was open to all (indicating no fraudulent intent).

The Supreme Court, overturning the decision of the Court of Appeal, held that:

• The employee’s conduct constituted a manifest violation of the most basic behavioural rules laid down by the law, as well as of internal company procedures and the company’s code of ethics.
• The employee’s breach of these rules was so obvious that he could surely have been aware that the order he received was unlawful and, consequently, refuse to execute it.

In particular, the Court specified that executing the unlawful order of a superior does not prevent an employer from establishing just cause for dismissal, since Article 51 of the Italian Criminal Law it is not applicable to the employment relationship. Art. 51 prevents the punishment of unauthorised behaviour (even if it constitutes a crime) only if it was done to comply with an order of a public authority.

Specifically, in order for Art. 51 to apply, the orders must be issued by a public authority (as is clearly set out in the law), which means that the hierarchical relationships taken into consideration are exclusively those governed by public law. As a consequence, where there is a private relationship such as the one between an employer and their employees, this justification cannot apply.

Most recently, in decision no. 30122 of 21 November 2018, the Supreme Court confirmed the legality of the dismissal of an employee by a cooperative company for having used a forklift on his superior’s order, although its use was expressly prohibited by company policies. The Supreme Court specified that the fact that the employee was acting on his hierarchical superior’s order did not exclude unlawful nature of the employee’s behaviour since the company proved:

• there was a specific company ban on using the forklift;
• the employee was aware he had insufficiently training to use it.