Licensed for a Facebook Post

On social media, it is better to keep your tongue in check. In fact, anyone who posts against the company on Facebook can be fired for just cause. The Supreme Court, with sentence 27939 of 13/10/2021, rejected the appeal of a worker who had made harsh criticism on social media against the boss and the managers. The man defended himself by claiming that his Facebook page was only open to his friends and therefore was not public.

But the thesis did not convince the judges who, in the first place, reiterated how criticisms are admissible in a private chat given the need to protect the freedom and secrecy of the messages exchanged as they are directed only to members of a particular group and not to an indistinct multitude of people, therefore to be considered as private, closed and inviolable correspondence.

But in the case being examined by the Court, there is no such need for protection (and the consequent illegality of the use for evidential purposes) of an offensive comment against the employer company disseminated on Facebook. The medium used is, in fact, suitable for determining the circulation of the message among an indeterminate group of people. Reason why the dismissal is valid. Not only that: the worker was also accused of slight insubordination. Which alone justifies the termination of the relationship. In fact, for the Court, the notion of insubordination must be understood in a broad sense: so that, in the context of the employment relationship, it cannot be limited to the employee’s refusal to comply with the provisions of superiors (and therefore anchored, through a literal reading, to the violation of article 2104, second paragraph of the Italian Civil Code), but necessarily also implies any other behavior capable of compromising the execution and correct performance of said provisions within the framework of the company organization. In fact, what matters, for a correct identification of a conduct of insubordination, in balancing the interest of the employer in the regular functioning of the production organization with the claim of the worker to the correct execution of the employment relationship, is the connection to the contractual synallagma: in the sense of the relevance of only behaviors likely to affect the execution and regular performance of the service, as inserted in the company organization, in terms of the accuracy of the fulfillment (with reference to the managerial power of the entrepreneur ), as well as the order and discipline on which the overall organization of the company is based, and therefore with reference to hierarchical and disciplinary power.