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When investigative agencies may be responsible for controlling the work of an untrustworthy employee?
According to the press, last July the Supreme Court, by order no. 15094/2018, “declared illegal the use of investigative agencies to monitor work performance.” In fact, although at a glance it may seem so, in fact, the Court’s ruling only reiterated a concept already known to both companies, and to the investigations company, or that we can not investigate the actions of an employee within the site of work.
“According to the judges of the Supreme Court – explains Marzio morning Ferrario, chief investigative agency administrator Phersei – the fault of the company was not in having teamed with the investigating companies in the lens itself but the granted” .
The judgment that declared illegal the dismissal of an employee who had been checked as part of his job performance.
The employee had been fired – with a first judgment of the Rome Court of Appeal of April 20, 2016 – for having “represented to their company an occupation does not really turning point” thus violating the “duty of care in the performance of job performance. ” The finding of negligence, however, had taken place through the agency of investigation he had felt the failure to perform its oversight duties from external sites to the company and the false declaration.
“But here the error – continues the Phersei AD – the assessment was referring to times when the employee was outside the company but during business hours. Reason for which, according to the judges of the Supreme Court, the investigator tests were, even if substantiated, do not count towards the legitimacy of the dismissal. “
Considering it illegal dismissal, therefore, the Court reiterated that the relationship with the investigating agencies must, however, respect the privacy of individuals placed under verification.
Under ‘ Article 3 of Law 300/1970 , the work of supervision is the exclusive prerogative of employers and employees indicated by them. The control on employment can not be hidden, which means that employees must be informed in advance of who is the person responsible for making the checks.
The use of private investigators is necessary to ascertain the infidelity of the employee who, in times not directly working (for example during illness or leave), puts at risk the company’s assets.
- Recourse to the detective is permitted when the employee is out of the company and there is probable cause that the employee is making the protagonist of the fulfillment of a crime even to the detriment of the company, so the agency is not responsible for monitoring the work technical worker but only to ascertain the unlawfulness of his behavior.
- Recourse to the detective is NOT allowed instead of when the end of the examination arranged is to verify the performance of work and then to ascertain specific failings of the employees within the workplace . The employer can not perform checks on employees or with its own staff or with staff. The investigator can not follow the employee when he is “on a mission” or when it carries out its activities outside the company.
“The most important lesson made in that judgment is not so much in judgment on the dismissal but valid or not – concludes Marzio Ferrario – the definition of a boundary line between lawful hidden controls and those offenses.”
Unfortunately, in an effort to meet the need of the company to protect its assets still trying to respect the dignity of the employee we often find ourselves in front of an invisible boundary. And in order not to overcome it, it is necessary the presence of a third investigator able to ascertain with professionalism and competence the veracity of the evidence without invading the privacy of others.