Civil Cassation, section work, sentence 05/10/2016 n° 19922
THE
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.
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 "l’effettività del divieto di controllo a distanza dell’attività dei lavoratori richiede che anche per i c.d. controlli difensivi trovino applicazione le garanzie della L. no. 300 from 1970, art. 4, comma 2; ne consegue che, se per l’esigenza di evitare attività illecite o per motivi organizzativi o produttivi, il datore di lavoro può installare impianti o apparecchi di controllo che rilevino anche dati relativi alla attività lavorativa dei dipendenti, tali dati non possono essere utilizzati per provare l’inadempimento contrattuale del lavoratori medesimi” (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)
Related news: Cassation. "Permitted to monitor the worker who carries out external activities with GPS"
Yes to the use of 007 to discover the worker's fake illness
Worker spied with gps? Confirmation of dismissal