Court rejects challenge of dismissal based on unauthorised remote monitoring

Facts
Decision
Comment


Facts

On May 27 2015 the Supreme Court issued Decision 10,955, which concerned an employee's dismissal for just cause on the grounds of conduct which included:

• leaving the workplace to make a private phone call, which prevented him from acting promptly to fix out-of-order company machinery;
• keeping an iPad that was switched on and plugged in in a company locker; and
• engaging in conversations on Facebook via mobile phone.

The trial court rejected the employee's challenge of the dismissal. At the end of the second phase of the dismissal procedure – the so called rito Fornero (for further information please see "Fornero labour reform at a glance") – the decision was overturned and, although the employment relationship was terminated, the company was ordered to pay damages for 22 months on the assumption that there were no grounds for just cause or justified reason. The decision was appealed and the appeal court ruled in favour of the company and rejected the employee's challenge.

Decision

The Supreme Court confirmed that the dismissal was lawful and considered the case to be outside the scope of Article 4 of Act 300/1970 (the so-called worker's statute). In particular, the court underlined that Article 4 – invoked by the employee to complain about the use of remote monitoring without prior and mandatory employee authorisation – did not apply.

The employee challenged the fact that the company had created a fake Facebook profile of a woman who requested his friendship and with whom he engaged in several online chats during working hours and on company premises.

The Supreme Court used the case to underline the case law regarding Article 4 of the act and clarified that when an investigation is focused on the protection of a company's assets or the prevention of unlawful behaviour, rather than on verifying the fulfilment of obligations that arise directly from an employment relationship, the investigation is outside the scope of Article 4.

The decision echoes a previous Supreme Court decision (2722/2012), according to which the investigation of email messages sent by a banker to parties to whom he had provided information acquired by virtue of his work did not represent a surveillance activity pure and simple. Further, the case also evoked another Supreme Court decision (2117/2011), which recognised the legitimacy of an employer's use of video recordings of its office and documents stored there that were filmed by a third party for defence purposes.

With reference to IT facilities, case law recognises that Article 4 of the act does not apply, and that the investigation of activities which concern equipment and/or computer systems owned by the company when there is a suspicion of unlawful activity is considered lawful.

Comment

In the case in question, the investigation was carried out through a manager's creation of a fake Facebook profile of a woman who requested the employee's online friendship. Therefore, the employee was induced to chat online – circumstances which raise the issue of what is known in criminal law as 'agent provocateur' activities.

Evidence gathered from an undercover investigation can be used in court only under certain conditions and may expose the agent to criminal liability when his or her actions go beyond uncovering existing criminal intent. Further, an undercover investigation can result in violations of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Compliance with the principles of fair process as defined in the convention is problematic in a criminal liability case based on evidence gathered from undercover or police operations that caused the committal of a crime by a person who would otherwise not have not committed it.

Supreme Court case law specifies that proceedings will be considered fair only if it appeared that the person under investigation was about to commit a crime and that the agent provocateur merely uncovered a latent criminal intent and provided the opportunity to realise it. Therefore, the intervention of an agent provocateur does not necessarily affect the right to a fair trial. However, if the intervention of an agent provocateur causes the committal of a crime, it can potentially jeopardise fair trial principles.

For further information on this topic please contact Andrea Stanchi or Annamaria Pedroni at Stanchi Studio Legale by telephone (+39 02 546 9522) or email (a.stanchi@stanchilaw.it or a.pedroni@stanchilaw.it).