According to the Court of Trento (judgment of 8 July 2021), the dismissal for just cause of an employee of a public kindergarten school who repeatedly refused to wear a mask in the workplace is lawful.
In the judgment in question, the judge at first instance:
- rejected the employee’s claims, stating that the conduct complained of was worthy of dismissal for just cause, since she had “put before the general interest (as well as those of users and colleagues) her own personal convictions which are not based (contrary to the provisions requiring the use of a mask in the workplace, especially if closed) on knowledge recognised by the scientific community because it has been subjected to strict controls”;
- held that the applicant’s conduct constituted a breach of the legislation on the protection of health and safety in the workplace, given that the face mask must be regarded to all intents and purposes as personal protective equipment.
In its decision, the Court of Trento also discusses the evidence and the defences put forward by the employee, stating that:
- in the medical documentation produced by the employee, there is no certificate issued by a doctor attesting to the impossibility of wearing a mask for health reasons (a condition which, in any event, “presupposes a technical-scientific assessment and cannot be the subject of testimonial evidence“);
- she has not enclosed any objectively appreciable evidence justifying the carrying out in the present proceedings of a technical examination relating specifically to her person.
The employee’s attempts to justify her conduct – her refusal to wear the mask – on the basis of specific psycho-pedagogical reasons, based on her professional experience, were also to no avail, since, according to her, scientific studies claim that ‘the adoption of safety devices which conceal a large part of the face, such as masks in this case, leads to psychological disorders in children aged between 1 and 5 years‘.
In the Judge’s view, these arguments are without merit since, as is clear, these are assessments made outside the context of the contingent pandemic emergency, where the protection of physical integrity, which is exposed to certain and very serious harm, takes priority.
Ultimately, the conduct for which the applicant was responsible constitutes a just cause for dismissal as a serious and irreparable breach of the element of trust which forms the basis of the employment relationship, having regard to her conduct:
- not only in its objective content – with reference to the nature and quality of the relationship and the degree of reliance required by the duties performed – in the present case taking into account that masks are considered by the legislature to be personal protective equipment;
- also in its subjective scope – with reference to the particular circumstances and conditions in which it was carried out, to the manner, effects and intensity of the agent’s volitional element – in the present case, since the conduct of the applicant, who put her own personal convictions before the general interest, cannot be blamed.
In this regard, it should be recalled that Article 20(1) of Legislative Decree no. 81/2008 provides that: “Every worker must take care of his own health and safety and that of the other persons present in the workplace, on whom the effects of his actions or omissions fall, in accordance with his training, instructions and the means provided by the employer“; in particular, the subsequent co. 2 letter d) requires workers to “make appropriate use of the protective equipment made available to them“.
If all this were not enough, it should also be borne in mind that the employer is liable not only for the failure to adopt measures to prevent the risks present in the workplace, but also when he fails to ensure that the workers have actually used such measures.
It should be considered, however, that although the reasons of the judge are acceptable, since this is a decision of first instance and a very first stop on a conduct of this content that will certainly be the subject of different and future pronouncements, it is advisable for the employer to assess with the utmost caution the adoption of the possible disciplinary proceedings, relying on a specialised consultant.