Civil Cassation, section work, sentence 05/10/2016 n° 19922
THE
The employer does not have the possibility of (remotely) monitoring his employees using GPS equipment, as this is a "generalized monitoring" system set up even before the emergence of any and all suspicions.
From this it follows that the employer cannot use it for the purposes of so-called defensive checks in order to verify the violation of contractual obligations.
Thus the judges of legitimacy decided with the decision of 5 October 2016, n. 19922, which rejected the appeal presented by the private surveillance company against the decision of the Court of Appeal, which confirmed the illegitimacy of the dismissal of a vigilante.
Based on the findings of the GPS system (mounted on the car supplied to him) it was found that the worker had not carried out all the inspections he had recorded in the service report.
Hence the withdrawal provision for disciplinary dismissal for just cause.
In the reasons in support of the cassation appeal, the company had considered the existence of all elements to retain control by GPS a defensive control, or aimed at ascertaining the illegality of the employee's conduct, the verification of conduct ex post as a result of (founded) suspicions, and the functionalisation of control to protect corporate assets.
The judges of the Court rejected the company's thesis, noting first of all how the GPS system was set up ex ante and in a general way, therefore well before there could be suspicions about a possible violation by the employees.
The GPS also acts as a generalized control system which is used by the company regardless of suspicions or complaints from dissatisfied customers with the service.
In the decision that is commented on it is read verbatim that "the effectiveness of the ban on remote monitoring of workers' activities requires that the guarantees of the L. no. 300 from 1970, art. 4, paragraph 2; it follows that, if for the need to avoid illegal activities or for organizational or production reasons, the employer can install systems or control devices which also detect data relating to the work activity of the employees, such data cannot be used to prove breach of contract by the workers themselves" (Cass. no. 16622/2012; see as well as in a compliant sense Cass. no. 4375/2010)”.
From all of the above it follows that the withdrawal order made against the vigilante is illegitimate (who therefore must be reinstated) where the dismissal is based on sources of evidence all attributable to the satellite system mounted on the company car.
(Altalex, 25 October 2016. Note by Manuela Rinaldi)
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