{"id":13517,"date":"2025-03-04T10:47:42","date_gmt":"2025-03-04T09:47:42","guid":{"rendered":"https:\/\/www.zambellipartners.com\/?p=13517"},"modified":"2025-03-04T10:47:43","modified_gmt":"2025-03-04T09:47:43","slug":"employer-offended-on-facebook-by-an-employee-the-dismissal-is-unlawful-if-the-employees-outburst-is-due-to-an-unjust-fact","status":"publish","type":"post","link":"https:\/\/www.zambellipartners.com\/en\/employer-offended-on-facebook-by-an-employee-the-dismissal-is-unlawful-if-the-employees-outburst-is-due-to-an-unjust-fact\/","title":{"rendered":"EMPLOYER OFFENDED ON FACEBOOK BY AN EMPLOYEE: THE DISMISSAL IS UNLAWFUL IF THE EMPLOYEE\u2019S OUTBURST IS DUE TO AN UNJUST FACT"},"content":{"rendered":"

Angelo Zambelli comments an Italian Supreme Court order in the article published in L&E Global website<\/h2>\n

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The case refers to the dismissal of an employee who, through her Facebook profile, disparaged the employer. It was after her husband, who is employed by the same company, was injured because of the leak of toxic substances in the company\u2019s premises. The Supreme Court deemed the expulsive measure unlawful, qualifying the employee\u2019s conduct as an outburst caused by a contingent event and attributable to the employer\u2019s liability.<\/p>\n

It is unlawful to dismiss an employee due to the publication on her Facebook profil of sentences offensive to the reputation and image of the employer if these can be qualified as a \u201cvent\u201d caused by an \u201cunjust fact\u201d attributable to the employer\u2019s responsibility. This was established by the Supreme Court, with Order No. 26446 of 10 October 2024, in relation to a case in which an employee was dismissed for just cause for having posted on her Facebook profile defamatory statements against the employer and the company management, following to the leak of toxic substances in the company\u2019s premises where her husband, also employee of the company, had been injured.<\/p>\n

The Court, deciding on the merits by reforming the first-degree judgement, annulled the dismissal, ordering the reinstatement of the employee in her job position, deeming applicable the ground for non-punishment of provocation under Article 599 of the Criminal Code. Specifically, according to the Court of Appeal of Florence, the defaults notified to the employee, although of disciplinary relevance, had been committed \u201cin a state of anger caused by an unjust fact of other individuals and immediately after it.<\/em>\u201d This condition was suitable to exclude the punishability of the employee and the lawfulness of the expulsive measure applied by the company.<\/p>\n

The employer appealed against the decision before the Supreme Court on the grounds that the Court of Appeal \u201cerroneously<\/em>\u00a0[\u2026]\u00a0held that the serious disparaging conduct<\/em>\u201d of the employee did not constitute a criminal offence due to an erroneous interpretation of Article 599 of the Criminal Code, which certainly excludes the punishability of the crime \u201cbut not also the nature of civil offence of the act<\/em>\u201d since the assessment of a conduct having disciplinary relevance \u201cmust be autonomous with respect to the criminal profiles.<\/em>\u201d<\/p>\n

In its judgement, the Supreme Court preliminarily clarified that in cases such as the one in question, the civil court\u2019s assessment \u201cmust be conducted in accordance with criminal law<\/em>\u201d and must refer to \u201cthe existence of the offence in all its objective and subjective elements.<\/em>\u201d That being stated, the Court of Appeal, correctly carrying out an assessment not only on the \u201cnon-punishability of the fact, constituting a wilful offence<\/em>\u201d but also on \u201cwhether the conduct could in any case be relevant for the existence of just cause for dismissal,<\/em>\u201d considered significant \u201cin terms of the employment relationship, for the purposes of assessing the non-seriousness of the fact<\/em>\u201d the same circumstances that, on the basis of criminal law, \u201cwere considered suitable to exclude the existence of a crime.<\/em>\u201d<\/p>\n

Thus, the Supreme Court concluded that the route followed by the Court of Appeal of Florence is absolutely acceptable since the employee\u2019s conduct can be attributable to \u201can outburst linked to the particular emotionality determined by a contingent event<\/em>\u201d for which the employer was liable.<\/p>\n

Key Action Points for Human Resources and In-House Counsel<\/p>\n

Practical Points<\/strong><\/p>\n