The notion of insubordination in the context of the employment relationship
Case ref: Court of Cassation, labour section, order no. 13411 of July 1st, 2020
The notion of insubordination cannot be limited to the refusal to comply with the provisions of superiors, but also to any other conduct that may prejudice the execution and proper conduct of the same provisions within the framework of the company organisation.
This is what ruled the Court of Cassation in its judgment no. 13411 of July 1st, 2020.
In the case in point, the judgments on the merits of the case had ruled on the legitimacy of dismissal for just cause served to an employee challenged for insubordination and violation of the rules of correctness for threatening a colleague.
The employee challenged the decision before the Court of Cassation complaining, among other reasons, that there was no insubordination, given the absence of a hierarchical relationship between him and the threatened colleague. Nor, again according to the plaintiff’s argument, was there a disciplinary offence, since the dispute occurred after the termination of the working day.
The Court of Cassation, with the judgment under examination, rejected the appeal and confirmed the decision of the Court of Appeal.
According to the Supreme Court, in fact, «the concept of “insubordination” must also be determined in the same way as the lexical meaning and meaning of the term in legal and current language».
With regard to the notion of insubordination in the context of the employment relationship, the Court recalls that «it cannot be limited to the refusal to comply with the provisions of superiors, but necessarily it also implies any other conduct that may prejudice the execution and proper conduct of those provisions within the framework of the company organisation (see Court of Cassation no. 3521 of 1984 and no. 5804 of 1987 and, lastly, Court of Cassation no. 7795 of 2017)».
In the present case, moreover, the Supreme Court remarked that «the conduct that was the subject of the disciplinary charge, although carried out outside working hours, had been carried out by the employee on company premises and had been to the detriment of an employee who, in the particular organisational context, was responsible for representing the company in her capacity as manager and the case had concerned aspects relating to compliance with internal provisions dictated by the employer concerning the use of company assets».
For these reasons, concludes the Court of Cassation, it is not relevant the reference to Case law relating to extra-work behaviour, «since – in any case – it must be specified that even the extra-work character of a behaviour does not generally preclude disciplinary sanctions, since Articles 2104 and 2105 of the Italian Civil Code, referred to by the provision of Article 2106 of the Italian Civil Code concerning disciplinary sanctions, are not to be interpreted restrictively and do not exclude that the duty of diligence of the employee also refers to the various instrumental and complementary duties that contribute to qualify the employment relationship».
Finally, the Court also dismisses the further ground of appeal, namely the argument that the conduct of the worker was a mere dispute without any violence and therefore, as such, did not was part of the infringement for which the NCBA applied provides the dismissal for just cause.
On this point, the Supreme Court notes that the scale of values adopted in the NCBA constitutes one of the parameters to be referred to for the purposes of the assessment of the specific case in the general clause in Article 2119 of the Civil Code. However, this does not detract that «even when the conduct is theoretically corresponding to the contractually typified case, it must still be attributable to the legal concept of just cause, through a concrete assessment of the proportionality between sanction and infringement, also from the subjective point of view of fault or intent (see Court of Cassation no. 9396 and 28492 of 2018, no. 14063 of 2019, as well as Court of Cassation no. 8826 of 2017, no. 27004 of 2018 and no. 19023 of 2019)».
Finally, with reference to the assessment of the proportionality of the sanction, according to the Supreme Court, the judicial investigation must be aimed not only at verifying whether or not the fact charged can be traced back to the provisions of collective bargaining that allow for the sanction of the dismissal «but also, through an assessment in concrete terms, whether the conduct was carried out, by its seriousness, is likely to cause irreparable damage to the employer’s trust and to lead to the belief that the continuation of the relationship is prejudicial to the company’s aims, with particular attention to the conduct of the employee that shows a lack of inclination to diligently implement the obligations undertaken and to comply with the canons of good faith and correctness (see Cass. 18195 of 2019)».