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Order No. 29310 of November 13, 2024, issued by the Italian Supreme Court (Labor Section), provides a significant opportunity to reflect on the legal configuration of liability in cases of mobbing and the related implications for employment relationships in public administration. The ruling originates from an appeal filed by a former employee of the Ministry of Justice against a superior officer, accused of harassment. Below is a detailed analysis of the key points in the decision.
1. Configuration of Mobbing and Legal Liability
The Court reaffirmed that liability for mobbing may take different legal forms depending on the individuals involved. In this specific case, the appellant argued that the officer’s behavior constituted a violation of Article 2087 of the Italian Civil Code, which requires employers to adopt all necessary measures to safeguard the physical and moral integrity of their employees.
However, the Supreme Court excluded the applicability of Article 2087 of the Civil Code to the officer, clarifying that the officer, not being the employer, could not be considered a “datore di lavoro” (employer). The officer’s liability instead falls under tort liability pursuant to Article 2043 of the Civil Code, applicable when damage is caused by willful misconduct or negligence. Consequently, the statute of limitations is the five-year period provided for extracontractual offenses.
2. Mobbing and the Doctrine of Organic Identification
A critical aspect of the ruling concerns the relationship of organic identification between the public employee accused of mobbing and the administration. The appellant sought to demonstrate that the officer, acting in her managerial capacity, should be regarded as the employer under Article 2087 of the Civil Code.
The Court rejected this interpretation, highlighting two key points:
- Role of the Employer: The actual employer, who holds the contractual relationship, is the Ministry of Justice, not the officer. Therefore, any potential contractual breach must be attributed to the Ministry, not to a colleague, even one in a superior hierarchical position.
- Employee Liability: The officer’s conduct was framed as extracontractual liability, governed solely by Article 2043 of the Civil Code. In this context, the appellant would need to demonstrate unjust damage and the subjective element of willful misconduct or negligence.
This clarification reinforces the principle that in mobbing cases, it is essential to distinguish between employer liability (contractual) and the liability of other employees (extracontractual). Confusion between these entities can result in the inadmissibility of legal actions.
3. Statute of Limitations and Duration of Harassing Behavior
Another contested point raised by the appellant was the statute of limitations for the offense. The appellant argued that the harassing behaviors continued even after the employment relationship ended and that the statute of limitations should run from the official communication of the termination decree in 2009.
The Court rejected this argument, determining that the statute of limitations begins upon the actual cessation of work activity, which, in this case, was established as September 16, 2004. Requests to reassess the facts were deemed inadmissible, having already been examined in prior instances.
4. Role of the State Attorney’s Office and Legitimacy of Representation
A significant issue in the case concerned the involvement of the State Attorney’s Office (Avvocatura dello Stato) in defending the officer accused of mobbing. The appellant challenged the legitimacy of this representation, arguing that the State Attorney’s Office was not authorized to intervene in a dispute between employees.
The Supreme Court clarified that the involvement of the State Attorney’s Office is governed by Article 44 of Royal Decree No. 1611 of 1933. This provision allows the Attorney’s Office to represent and defend public employees in civil or criminal cases related to their service, at the request of the administration. The Court emphasized that:
- The decision to request representation by the Attorney’s Office is an internal administrative act, not subject to judicial review.
- The Attorney’s Office is under no obligation to justify this decision or demonstrate its grounds during proceedings.
- The intervention is discretionary, provided it pertains to service-related matters.
The ruling underscores that the State Attorney’s Office acts to safeguard the public interest and that its intervention can only be challenged in cases of manifest illegality.
Conclusions
Supreme Court Order No. 29310/2024 serves as a key reference point for clarifying the configuration of liability in cases of mobbing within public administration. It affirms that:
- Liability for mobbing by an employee can only be classified as extracontractual under Article 2043 of the Civil Code unless the employer is directly involved.
- Legal actions must correctly identify the responsible party, avoiding overlaps between the institution and individual employees.
- The State Attorney’s Office can legitimately intervene to defend public employees, provided the matter is related to their service.
These principles provide essential guidelines for both public employees seeking to address mobbing and legal professionals tasked with managing such disputes.
