An ‘angry argument’ with an employer does not necessarily mean the termination of the employment relationship: indeed, such conduct - on its own - cannot be considered sufficiently serious as to justify the immediate dismissal of an employee.

This principle was affirmed by the Italian Supreme Court in its recent decision (no. 1315) of 19 January, 2017. The Supreme Court held that an angry argument, even if offensive, between the employee and the employer does not necessarily constitute a breach of the employee’s obligations so serious as to jeopardize the trust of the employer, nor is it a case of insubordination.

Indeed, according to the Supreme Court, dismissals “on the spot” (i.e. with immediate effect) can be served to employees only as a consequence of conduct that constitutes a violation of the obligations deriving from the employment relationship so serious as to constitute an irreparable loss of trust by the employer in the employee’s capability of fulfilling his/her obligations. In the Court’s view, the notion of insubordination does not only consist of the employee’s refusal to comply with instructions given by the employer, but also of any conduct that can obstruct the execution of the employer’s instructions in the context of the company’s organization.

Therefore, even criticism that is directed toward a higher-ranking colleague in a despicable manner (due to the tone used, the content, etc.), can constitute a dismissal for cause (i.e. with immediate effect) if it affects the business organization, undermining its efficiency - that is based, among other things, on the authority of the superiors.

In this context, in order to assess whether the employee’s conduct constitutes insubordination, it has to be analyzed using the following criteria:

  1. the nature and quality of the employment relationship;
  2. the position of the parties;
  3. the skills required for the execution of the employee’s duties;
  4. the injury caused; and
  5. the importance of the facts (namely, the circumstances in which they occurred, the reasons and the strength of the intention or negligence).

The abovementioned evaluation, however, can also be made by taking as a reference the cases of dismissal on disciplinary grounds that are listed in the collective agreement applied by the employer.

By virtue of these principles, in a situation where the employee, after receiving an order by the Plant Manager, began to argue angrily with the latter, using ‘a disrespectful tone’, the Court did not consider the tone to be so offensive as to undermine the fiduciary relationship and, therefore, was not sufficient to justify a dismissal for cause.

In particular, the Court, examining the conduct of the employee: he had had an argument with his superior after which he fulfilled the requested order. In assessing the circumstances as a whole, the Court found that it had been demonstrated that the argument was the result of an excessive rebuke by the Plant Manager. The Court also noted the cases listed as dismissals for disciplinary reasons in the Collective Agreement applied by the company were more complex and serious than the employee’s conduct in this instance.

Even though the Court did not deviate from previous case law, this decision provides useful criteria to assess whether insubordinate behavior is present. It would appear to clarify that it can be excluded when the employee’s tone towards the employer - albeit offensive – is merely the consequence of an animated argument which was provoked and/or fueled by the employer, also as a consequence of an excessive reproach.

In a nutshell, the Court requires the employer to carry out a preliminary assessment of its own conduct when employees display conduct that could be considered "insubordination".