ISF fired for making personal phone calls with company cell phone. The use of a private investigator to verify the reliability of the medical certificate
With Judgment 17113, the Supreme Court deems legitimate the use of a private investigator with the task of following up the employee during the period of illness to see if the back pain certified by the general practitioner really prevented him from working.
According to the investigator's report, the "supervised" had made a series of actions and movements completely incompatible with the complained pathology. For the judges, therefore, dismissal for just cause is legitimate, specifying that the employer has the right to resort to an investigative agency to verify the reliability of the medical certificate, which can also be challenged by making use of factual circumstances. What it cannot do is make the employee "spy" while he is engaged in actual work.
The second case reported by the "Sole" concerns a Pharmaceutical Scientific Representative (ISF) fired for disciplinary reasons with the accusation of using the mobile phone business for personal reasons.
With sentence 17108, the Supreme Court established that the maximum punishment is not justified, however, because the employer was unable to prove the charge. The pharmaceutical company had forced the informant to demonstrate the identity of the people called through his telephone book. According to the judges there was an inversion of the honor of the test: it was up to the employer to provide the Vodafone printouts from which to trace the private calls. Furthermore, the extra work phone calls were no more than 7 or 9 a day. Too few to justify the dismissal.
The ISF was also accused of falsely reporting visits to doctors. The evidence consisted of the testimony of the private investigators hired by the company to tail the employee. The Cassation confirmed the sentence of the Court of Appeal which found private investigators unreliable.
Summary by the editorial staff – 08/17/2016