Employers must be neutral in case of unions fights

The employer is required to maintain a neutral position in relation to the conduct of its employees in trade union conflicts. Thus, the Court of Cassation, in its judgment number 2520 of 27 January 2023. The case originates from a dramatic event, the suicide of an employee, following which was found a draft of his e-mail that linked the tragic decision to a work-related stress situation. For this reason, one of his colleagues, a member of the Rsu present in the company, wrote to some of his fellow union representatives claiming that the suicide had been caused or at least instigated by the company's decision to initiate the mobility procedure and by the decision of those Rsu members who, unlike him, had signed the agreement to close the mobility procedure. Some of the trade union representatives complained to the company management, considering themselves offended by the accusations made by their colleague, who was then subjected to disciplinary proceedings resulting in the imposition of an eight-day suspension from work and pay. The Court of Appeal of Milan, reforming the judgment of first instance, annulled the disciplinary sanction, bringing the employee's initiative within the scope of trade union dialectics and the right of criticism and denying the existence of an intent to harm the reputation of the company on the part of the author of the missive, since it was addressed to trade unionist colleagues. Therefore, the sanction had to be considered unlawful, since the employer's disciplinary power could not be exercised in relation to conduct unrelated to the employment relationship and relating to the exercise of the right to trade union freedom, which is constitutionally guaranteed. The company appealed in cassation, contesting the decision of the Court of Appeal for having ignored the employee's authorisation of the disclosure of the missive. In another respect, the company denied the union character - and within the limits of substantive and formal continence - of the employee's declarations. The Court of Cassation rejected the company's appeal, noting that the expression – “forward it to whomever you like” - contained in the missive, apart from being extremely generic and clearly dictated by a mere polemical impulse, could only authorise its forwarding to the company without changing the nature of the message in question. Precisely with reference to the nature of the employee's statements, the Court of Cassation confirmed that it was a purely trade union dynamic between union representatives with different views on the decision to sign or not to sign a mobility agreement, a matter entirely extraneous to the company's reputation. Therefore, the Court of Cassation confirms the principles already expressed on the subject of repression of anti-union conduct, considered applicable to the present case due to identity of ratio, whereby the collective conflict is not only that one between employer and employee but also that one between organisations representing the interests of workers, in relation to which the employer "is required to maintain an attitude of neutrality (not limited to mere compliance with art. 17 Stat. lav.) except only for the interventions, eventually necessary to protect the safety of persons or the integrity of the company" and cannot exercise its disciplinary and hierarchical-directive powers, as they are attributed to it "for the sole purpose of governing the company's production needs (Cassation 18176/2018)".