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26.072021

Illegally using a company car can damage a trust relationship (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, July 2021)

The Court of Cassation, in ruling no. 11644 of 4 May 2021, stated that it is legitimate to dismiss an employee who unlawfully uses a company car and tries to “hide a real accident and report a false one.”

In this case, a medical director of a local health unit (“AUSL”) concealed an accident, which occurred on the evening of 11 January 2017, while driving his company car, to hide its improper use, by declaring in the company’s report that it had occurred the following morning, in different circumstances, when he was using the car for company purposes.

This constituted further violations of the company internal rules concerning the use of company vehicles and the requirement that they are used exclusively for office duties, a prohibition against keeping the car at a private home and the obligation to fill in the logbook, etc.

As a result of this conduct, the employer terminated the contract immediately. This was based not so much by the irregular use of the company car, but by the fact that the employee had kept the company in the dark about the accident, trying to conceal the facts by reporting a false accident.

On this point, the local court held that it was undisputed that the only accident involving the employee was that of the evening of 11 January, since it was unlikely that two accidents could have occurred on the same vehicle just 12 hours apart. Furthermore, this possibility was ruled out by an investigation.

Following the employee’s appeal against the second instance ruling, the Court of Cassation – in its examination of the facts analysed in the first two instances – noted that the “unlikely” statement used by the Court of Appeal could be interpreted in two ways. The Court could have held that it was impossible for the two accidents to have occurred, or that it was improbable that they had occurred.

“Since such an impossibility is not predictable” – the Supreme Court observed – “it is evident that the interpretation of the reasoning must be the other, namely that the Court considered it unlikely that the worker had two accidents with the same vehicle in such a short time frame.”

Such a probabilistic construction, however brief, cannot be said to be illogical, therefore “it goes without saying that there was no violation of the rules on the burden of proof, the Court having essentially considered it proven that the accident had been only that specific one, which had unquestionably occurred, on the previous day.”

As for the dismissal, the local Court held that the offence was not to be included among the cases of the disciplinary code referred to the mere “concealment by the director of facts and circumstances relating to the unlawful use, tampering, diversion or misappropriation of sums or assets pertaining to the administration or entrusted to him”, but to the more serious case that contemplates ” acts and conduct […], albeit unrelated to the work performance, carried out including against third parties, which are so serious as not to allow the continuation of the employment relationship under Article 2119 of the Italian Civil Code.

The Supreme Court noted that, “the mere concealment of vehicle damage” is one thing, while “disguising facts, reporting a false accident is much more serious.”

On this factual reconstruction – according to the Court of Cassation – the local Court has focused its assessment on the incident seriousness and proportionality compared to the penalty applied by the company. The employee conduct could damage the trust relationship.

The Court of Cassation rejected the appeal submitted by the employee, and ordered him to pay court costs.


Source: Sintesi