The boundaries between legal and illegal are sometimes not so clear at first glance on the web. Protected from the screen, there are users who, for example, engage in comments that are too black or publish images that damage the reputation of third parties: in these cases, the authors of the content themselves. can expose them to criminal consequences, because using the IT medium and Social network.
But let’s also think about Profile fakethat is, those people Account Created with False or invented identity. Often, these profiles use names, photos and information that do not match a real person, or copy someone else’s identity without permission. The author of such a profile can expose himself to accusations of fraud, defamation, cyberbullying and more, but – as explained Cassation In an order – the employer is prohibited, in principle, from making a Fake Facebook Profile “Spying” on employees, where it reasonably suspects a violation;
Let’s look at the contents of a provision that may, in some ways, be surprising.
The story
A personnel manager of a company, already aware of previous cases of employee absenteeism, decided to form a company. On fake women profile Facebook friend requests a worker who was unwilling to respect work hours.
Specifically, the manager—suspicious of the fact that the employee had previously walked away from the workstation to make a phone call, leaving a machine unattended—intended to detect the person’s carelessness, Chatting with him during work hours was to expose his misbehavior and disciplinary infractions. . Specifically, the person was suspected of violating company regulations. Security of processing steps and systems.
Technically, the question is an example of one Defensive controli.e. a measure adopted by an employer to protect himself from any criminal or harmful behavior committed by his employees.
Lured by the fake female profile, the target employee thus allowed himself to communicate during hours consistent with work hours. Social networkcorresponds to the area in which the plant is located.
Clever use of a fake Facebook profile allowed the company to confirm suspicions of worker negligence. Therefore, the dismissal procedure was justified, against which the man appealed to the judiciary.
Supreme Court decision
A court battle that culminated Cassationended with a verdict in favor of the company. n. 10955 dated 27 May 2015. Indeed, according to the court, the choice to create a Fake Facebook Profile:
- does not indicate a mere desire to certify professional performance;
- But tryurgency Finding an escape route Illegal behavior of workersto the detriment of the company itself and the associated person Heritage And be put as such Threat to the safety and regular operation of machinery and systems.
Actually, the text of the sentence can be read as follows:
Conduct of the company to ascertain the commission Alleged illegal conductcreate one Wrong profile on social networkcontacts the suspected employee and induces him to have a virtual conversation during the time and place of work, cannot be included among those regulated by Art. 4 of the Labor Constitution, and respects workers’ rights to freedom and dignity, as well as the principles of good faith and fairness.
In essence, the court held that the line adopted by the company did not violate the then existing wording of Art. 4 of the Workers’ Statute (Law 300/1970). Remote control Employee Activity
Dismissal as sanction proportionate to particular case
In particular, the Supreme Court – reiterating the findings of the Court of Appeal – clarified that creating a false FB profile does not represent a violation of Art. 300/1070 of Law No. 4, because such Defensive control – used to establish facts – was not:
The continuity, inflexibility, aggression and pressure characteristics of the worker in carrying out his work activity.
That’s not it. This judge found it correct Proportionality Decision Considering that there were violations that went beyond the scheme provided by Art – between the facts verified and the sanction imposed – was carried out by the Court of Appeal. Application of 10 of the Collective Agreement:
Considering the fact that the employee had already been sanctioned for similar facts in 2003 and 2009 and that these instances were clearly cited. Dispute letter.
Art 4 Workers’ Constitution and Ban on Remote Control
In basing its decision legalizing the use of a fake FB profile under these circumstances, the Supreme Court observed that:
- Art 4 Workers’ Constitution Limits remote control equipment and subordinates the installation of equipment made necessary for organizational and production needs to the agreement with the RSA, or ad hoc provisions of the Labor Inspectorate.
- control, if its purpose is not to verify the performance of the work activity or the correct performance of the obligations arising from the relationship, but to protect the company’s assets and Prevent illegal behaviorHowever, the above remains outside the regulatory scheme mentioned in Art. 4 of the Constitution.
Illegal behavior in this case was represented by the chats and conversations that the employee had while entertaining.Working hourswith the resulting risk to system security and regular company operations.
Another case of inapplicability of the rules mentioned in Art. 4, given to the use of private investigators whose purpose is to detect abuse. Authorization Act 104.
The possibility of secret defense checks
In the light of what we have seen so far and considering the now agreed jurisprudence on these issues, it is not surprising that – Cassation – are generally eligible i “Invisible” defensive controls:
Also by personnel outside the company’s organization, since their objective is to detect illegal conduct other than mere failure to meet work performance, quantitatively and qualitatively, without bias but evaluative. through the essential description of activities Methods that are not overly invasive And respect Guaranteeing freedom and dignity of employeeswith which the employer’s interest in the control and defense of the productive organization of the company must be reconciled and, in any case, in accordance with the usual general principles. Correctness e Contract Good faith.
That’s not it. For the court, this defensive control, with Fake FB profile of a womanwas justified by the fact that the worker had – in the past – violated the company’s clause prohibiting the use of mobile phones during working hours and the performance of extra work activities.
In balancing different interests, Cassation Thus it has shown itself a tolerant and non-harsh attitude towards checks which, although somewhat fraudulent, have – their only purpose – to identify, condemn and punish the actions of workers or negligence, such as jeopardizing his regular job. The company and its profits. Applying the famous adage “the end justifies the means” Incorrect digital identity Therefore, it was considered legitimate and not against the law.
What changes?
For the worker, his position has definitely changed, as the court has confirmed the validity of the dismissal by the employer, for disciplinary reasons. But it is above all the instructions of the Supreme Court that there is an exception to this rule: indeed, in this case Termination for Cause Onlythe company that creates Wrong social profile Detecting the behavior of your workers, does not commit a crime.
This is a decision made with the above. Joomla No. 10955 of 27 May 2015leading to a kind of acceptance by the jurisprudence of the attitudes and controls of superiors that, despite being fraudulent and hidden, are intended to protect the primary interest of the company (indirectly by acting on other incumbents). (also protecting relationships).
In other words, in the clause we have discussed above, the Court has thrown light on conduct which, prima facie, may be considered illegal, but which is not illegal. The court has actually established that, in fact, the company or employer does not violate any law – and in the particular case that concerns Personnel Manager – who decides to make one. Fake digital identity To control an employee, who is suspected of negligence or wrongdoing. In the event that led to this judge’s delivery, there were indeed enough absences from office to justify his disciplinary dismissal.
Finally, the employee’s appeal was dismissed, essentially affirming the findings of the second instance judge and affirming the validity of the dismissal for cause alone.
