rumor that parking cai who has "given" to their employees as well as being very remote and even paid (????). Search on the net if there is legislation about this interesting place and meanwhile sentence. Hello
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control of workers: the badge for parking can not be used
Category: Business
Posted by Alessandra Delli Ponti [ADP] on 7/3/2008
Comment to the decision of Supreme Court Sec. IV, 17/07/2007, No 15,892
Alessandra Delli Ponti Article published in the online magazine Newsline (acronym NL) on 5 March 2008
The Supreme Court has expressed itself in the interesting ruling on the legality of the installation of a badge
company for access to parking, to use of employees, in the light of the provisions of art. 4 of Law No.
300/70. The case
company has provided its employees with automobiles parked in a local garage where
during working hours. Access to the garage was ruled by a safety device activated by a
card - badge - staff assigned to each employee, the same used for
the entrance to the offices.
Through the data collected by this device, which recorded the identity of the user who schedules
and out of the garage, compared with the input and output at work, the company pointed out inconsistencies in the presence of
employee in the office than revenue and expenses recorded in
garage. Therefore, the same company to dismiss the same employee. The employee fired
appealed the dismissal of the same as questioning the legitimacy
based on data collected in violation of Article 4 of Law 300/70, which
Workers' Statute.
The case came to the Supreme Court.
The decision of the Court of Cassation
The Supreme Court ruled in favor of the employee and declared unlawful dismissal. According to the Court
control equipment access to the parking company that registers
times and names of employees who use it, allowing the crossing of the data with those acquired
(legally) through the system of access control, if not installed
(different from the control inputs) in accordance with the procedures of Article. Ln paragraph 4 seconds
300/70, it is not lawful and not lawful use of data collected by it even
demonstrate a violation of the employee working hours and then the performance of
benefit payable.
addition, the Court will need to guarantee the protection of privacy and dignity of the worker who is in charge
art. 4 SL can not exclude this case from cases of so-called abstract control
defensive, that those controls intended to establish the unlawful conduct of employees when such conduct
about the exact performance of the service and
obligations arising from the employment relationship and not the protection of foreign goods from the report itself, "where the monitoring is
implemented through instruments that have those structural requirements and the potential to cause injury, which
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use is subject to prior agreement with the review or intervention Inspectors
work. Comment
In order to understand the scope and importance of the statements of Supreme Court is well
first frame the issue correctly.
always in the performance of work, the employer provides the worker
instrumentation that keeps the same worker and should be used to
the discharge of their duties. The use of this instrument compares, legally,
two important rights.
On the one hand there is the right of the employer to exercise a supervisory power in the sense that
is entitled to verify the proper performance of the organization and production, and also the occupational
. The legitimate power of control is recognized by the employer
Civil Code (articles 2086 cc and 2104 cc).
other hand there is the worker's right not to be offended in their dignity, freedom and privacy
. This right is guaranteed by the Constitution and recognized in Italy,
by the Privacy Code (Legislative Decree no. 196/2003) and in the Community of important legislative measures (
deserves mention among all the "working document on the surveillance of communications in place Working
prepared by the Working Group on Data Protection, established under Article 29 of Directive 95/46/EC
).
The coexistence of two rights is equally important from the point regulatory terms,
regulated by the Workers' Statute.
But the question that has been faced with even the Supreme Court ruling in
reported is not easy to solve: how far has the lawful power of control of the employer and
when, conversely, is invasive of privacy the worker?
central point for the resolution of this question is the application of Article 4 of the Statute of Workers
.
The rule in the first paragraph, lays down an absolute prohibition on mandatory and, assisted by criminal sanction
, installation and use of audiovisual equipment and other equipment intended to control
"of work."
The second paragraph contains a prohibition that could be defined flexibly. Allows, in fact, the use of tools from which
could derive an indirect control of remote workers,
provided that the following conditions:
- use of facilities or control equipment is required, "with organizational needs and production or
by job security;
- the installation is subject to the achievement of an "agreement with the union representatives
business," or "failing that, with the council." In the absence of agreement, the employer
work must be authorized by the Management Regional Labour responsible for the area, which provides the
establishing 'how to use these facilities. "
The rule then makes a distinction between
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a) equipment intended solely to remotely control the progress of work
, subject to the absolute prohibition
and b) equipment whose installation is required by organizational needs and production or
job security, which does not have as its primary "control", subject to a ban
flexible.
applicability of Article 4, case law characterized to date, as "legitimate"
the category of so-called defensive controls, which consist of forms of direct control or monitoring to ensure
misconduct of the worker who violated the company's assets or security, which does indeed fall protection
right recognized in Article 41 of the Constitution.
Accordingly, in the case law to date, when the purpose of control is
linked to the establishment of the commission of an offense, it would highlight the principles of freedom, dignity and confidentiality
protected primarily by the Workers' Statute. In this direction it moved the Supreme Court
with an important decision of April 3 2002 No 4746, part of which seems
be reversed by the latest pronouncement explained above.
The Supreme Court today revises its position in part, by taking explicitly
distances from the Judgement of 2002 cited above.
The new orientation of the Court relies on the fact that the need to prevent misconduct by employees
can not take a substantial scale in order to justify cancellation of any
form of guaranteeing the dignity and privacy of the worker.
For this reason, even the so called defensive controls must comply with the Article 4, second paragraph
the Workers' Statute. The Court
of Cassation, in essence, distinguishes two different cases of defensive controls:
1. checks to verify workers' misconduct involving (as in the case considered
) strict compliance with the performance and obligations arising from the relationship of work
2. controls relating to protection of assets unrelated to their employment, as the case examined in the ruling
4746/2002 (which focused on the legitimacy of the installation of a telephone survey of equipment
unjustified).
Therefore, the Supreme Court adds some elements to the theory of so-called defensive controls.
The Court, in other words, separating the implementation performance and its control ordinary
that would fall under the ruling in the forecast of 4 Workers' Charter, the protection of property
unrelated to the report, which would seem to exclude from that area.
doing so, however, the Court seems to restrict the concept of defensive controls.
Perhaps an item that should be reviewed again in light of new technologies, but that
ruling does not address is the concept of "control equipment".
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