Worker who spits and damages colleague's car cannot be dismissed
For the Supreme Court, the fact that he acted outside working hours, albeit in the company car park, prevails
2' min read
2' min read
The Court of Cassation, with the order 22593/2025, overturned the judgement of the Court of Appeal of Naples, which had found legitimate the disciplinary dismissal of an employee who, after entering the company car park in a vehicle driven by a third person, got out of the vehicle and spat on a colleague's car and kicked the left front mirror, detaching it and taking it with him.
The court of first instance opted for a precautionary sanction, considering that the act fell within the general clause in Article 53(h) of the collective labour agreement for the rubber and plastic industry, according to which an employee who 'in any way violates the rules of this contract or internal regulations or commits offences prejudicial to discipline, morals or hygiene' is punishable by a fine or suspension. The Court of Appeal, on the other hand, held that the employee's conduct fell within the category of 'serious breaches of discipline' for which the disciplinary code (Article 54(1)) provides for expulsion, also taking into account that the conduct was in conflict 'with wider rules or with the common, general and basic rules of civil coexistence, morals and ethics'.
The position of the Supreme Court
.The Court of Legitimacy, however, did not agree with the reasoning of the merits court and, with an articulated interpretation of the general clauses of the disciplinary code, held that
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- the scope of application ofArticle 53 of the Ccnl could include both omissive and active conduct (such as that in the present case);
- theseriousness of the conduct would not, in itself, constitute a discretional criterion between conservative and expulsive sanctions according to the scheme of the disciplinary code under review;
- according to Article 54 of the National Collective Labour Agreement, dismissal is applicable to an employee who commits 'serious breaches of discipline ... or who commits criminal acts in connection with the performance of the employment relationship', whereas in the specific case the conduct had occurred before the start of working hours, which would exclude a direct connection with the performance of the service. For these reasons, the Supreme Court set aside the judgement, referring the case back to the Court of Appeal for a new finding in the light of these principles.
The critical points
.The reasoning of theCourt of Cassation raises considerable perplexity, not so much with regard to the criteria of literal and systematic interpretation of the general clauses of the collective agreement (which, as is well known, suffers from very high levels of uncertainty and subjectivism, often exacerbated by ambiguous linguistic expressions), but with regard to the application outcomes.
In particular, the importance attributed by the Court to the fact that the conduct took place outside working hours is decidedly unacceptable. It is clear that spitting, as a gesture of serious social disvalue, together with damaging a colleague's car, which occurred in a company appurtenance, are behaviours that - in addition to being intrinsically offensive and damaging - deeply affect the employer's reliance on the employee's ability to manage interpersonal relations in the workplace and the tensions that could arise therefrom. The inclusion of the employee in a social context such as the workplace requires respect for the minimum rules ofcivil coexistence and the ability to manage conflicts and disagreements without resorting to aggressive, offensive or damaging behaviour. These are indefectible prerequisites of the bond of trust, so that the assessment should have been conducted at the level of the elementary duties incumbent on the employee, which find their primary source in the law and are independent of the actual performance of the service.
