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21.092020

In-company theft: dismissal is legitimate if provided for by the collective labour agreement (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, September 2020)

The Supreme Court of Cassation, in case No. 11005 of 9 June 2020, gave judgment on the dismissal of a worker who stole two company brushes which were recovered in his bag.

The Rome Court of Appeal ruling of 30 May 2018 had upheld the original Court of Cassino decision rejecting the worker’s application against his employer for a declaration of unlawful dismissal. The circumstances of the case reveal that the employer’s withdrawal from the contractual relationship was based on the fact that two brushes, which were considered to be company property due to their similarity to those used in the company and kept in storage, were discovered in the worker’s bag at the end of his shift.

The worker’s reasons justifying his possession of the brushes were not accepted as a demonstration of ownership, and the only rational conclusion was that the brushes had been unlawfully removed in order to profit illegitimately to the company’s detriment. Against the worker’s interpretation, witnesses confirmed that the brushes were identical with those used in the company, and thus the circumstances referred to in Article 32 of the applicable National Collective Labour Agreement (CCNL) – which provides for dismissal as a proportionate sanction in these circumstances – were held to be applicable in this case. Although the brushes were of low economic value, the incident was held to breach the relationship of trust between employer and employee, thus triggering the prompt application of the aforementioned sanction.

More specifically, according to the Supreme Court judges, the lower court based its conclusion that the company owned the brushes on an item of photographic evidence which reproduced the image of two generic brushes in use in the company, which were not exactly the same as those found in the employee’s bag. According to the Supreme Court, the photograph did not have the merit of actually identify the stolen objects, but it did establish – based on the employees’ testimony – whether or not the generic brushes shown in the photograph corresponded to the brushes found in the worker’s bag.

Finally, the Supreme Court, rejecting the worker’s appeal, attributed to the worker the absence of the brushes due to theft, which is one of the circumstances referred to by the collective bargaining agreement that justifies the maximum penalty that can be imposed. The judgement of proportionality expressed by the lower Court – based on the potential of the alleged unlawful conduct to undermine the bond of trust between employer and employee – is therefore an accurate one, as this bond of trust is precisely what the employer relies on if he is to be confident that future contractual services can be carried out properly; accordingly, the fact that the stolen goods are of low economic value is of no relevance.

Source: Sintesi – Ordine dei Consulenti del Lavoro