ITA 
The employee and union representative’s right to criticism is guaranteed by the Constitution. However, this must be exercised fairly, ensuring the protection of the human person. Therefore, if the employee and union representative attributes dishonorable qualities and unproven disparaging references to the employer, the conduct may be sanctioned.
Court of Cassation, judgment no. 35922 of 22 December 2023.
In the present case an employee and union Representative was dismissed for just cause because of his Facebook posts, where he roughly criticized his employer and the company.
In particular, the employee openly and rudely criticized, with offensive and vulgar words, some alleged conduct held by the founder of the Company. Furthermore, he invited his colleagues to join his Union Association, using a similar aggressive wording. The posts were considered by the Company as seriously detrimental to their image and prestige.
The Court of Appeal, confirming the previous decision of Tribunal, rejected the appeal because those Facebook posts exceeded the limits of the criticism’s right, were highly defamatory and could be considered outright threats.
The Court of cassation confirmed the decision of the Court of Appeal.
The Court clarifies that, as a general rule, the employee has the right to criticize, even harshly, the employer. However, this does not allow him/her to morally harm the employer’s image, with reference to facts that are not objectively certain and proven. In fact, the principle of freedom of speech is constitutionally protected, but it meets the limits set to protect the rights and freedoms of other people and must be coordinated accordingly.
These limits to the right to criticize also apply to the employee who is a Union representative, who, as such, must act as spokesperson for collective interest.
In the present case, according to the Court, the employee’s criticisms were held as unlawful. The expressions used and posted on the Social network (visible to all), were to be considered lacking any serious Union purpose and aimed only at harming the image and reputation of the Company and its founder.
