Dismissal of an employee hired by a Bank. Disciplinary relevance of the employee’s conduct in the previous employment relationship. Use of evidence gathered in a different case.
On January 11th2021, the Court of Pistoia stated the legitimacy of the dismissal for gross misconduct notified by a banking institute (which our firm assist) to an employee who, during his previous employment, had committed several irregularities regarding bank credit facilities and grant of credit. Such breaches came to light during the hearing held in the criminal proceeding in which the employee was charged (and then convicted) for his involvement in exploitation.
The Court, recalling a legal precedent of the Highest Appeal Court (so called “Corte di Cassazione”) (judgment no. 20319 of 9.10.2015), stated that unlawful conduct of the employee dated back to the previous employment relationship is relevant, if it is such as to affect the employee’s “ethical standing”, if it is provided for by the collective agreement as cause of dismissal and if it has been acknowledged by the (new) employer only afterwards. The Court also reaffirmed the undisputed principle of the Highest Appeal Court’s stating that the judge, for the purposes of his own conviction, may independently assess, in a regular contradictory between the parties, any evidence of valuable degree of proof, gathered in a different proceeding (between the same or other parties), and in particular in criminal proceedings.
The Judge also rejected the objection of lateness raised by the plaintiff who complained that the letter of formal notice was received nine years after the communication of the search warrant and more than seven years after the committal for trial. The Court, in the first grade, reiterated the undisputed principle of the Highest Appeal Court that the requirement of immediacy must be applied relatively, taking into account the specific nature of the disciplinary offence as well as the time needed to carry out the investigation, and therefore deemed that the notice was timely as it was communicated only once the Bank had full knowledge of the facts (i.e. only when it had received the documentation relating to the criminal trial from the employee).
Finally, in rejecting the appeal, the Court dwelled on the particular seriousness of the conduct of the employee which represented “a very serious breach of the most elementary duties of banking diligence, in particular in the grant of credit which, due to the high financial risks involved, requires in-depth assessments in order to avoid prejudicial events to the detriment of the bank and third parties who would otherwise rely on an untrue economic situation