ITA 
Published on Sole24Ore - Nt Lavoro - on 06/02/2024
The gravity of the fact charged does not depend on the amount of the employer's damage. In fact, the conduct of the employee must be assessed considering the value it may assume with respect to his future conduct, as well as its suitability to cast doubt on the future correctness of the performance and to affect the element of trust, on which the employment relationship is based.
Court of Cassation, no 1476/2024.
In the present case, a cook had been dismissed for taking away from his workplace some foods belonging to the restaurant he worked for. Those conduct had taken place over a period of two months.
According to the Court of Appeal, as well as the Tribunal, the conduct in question was serious enough to constitute just cause for dismissal under Article 2119 of the Civil Code.
The employee appealed to the Court of Cassation, arguing that the theft was not unlawful, since he had only taken food that had already been cooked, which the restaurant would have binned in any case.
The Court of Cassation, confirming the judgment of the Court of Appeal, ruled against the employee.
The employee's misconduct was to be considered serious and constituting just cause for dismissal. In fact, the thefts in question, although concerning cooked and perishable food, not destined for humanitarian purposes, manifested a significant social disvalue and were contrary to the principles of the law that do not allow the theft of employer goods (carried out several times and with a systematic organisation for their transport).
According to the Court of Cassation, even apparent tolerance of the employer, lacking any explicit or implicit authorisation, is irrelevant, because what in question is the employee's duty not to engage in conduct that may damage the bond of trust between the parties.