DOES THE EMPLOYER UNILATERALLY TERMINATE THE EMPLOYMENT CONTRACT?

Dismissal involves a whole series of conditions and requirements, including:


  • premise;
  • obligation to give notice;
  • reasons for dismissal;
  • justified subjective reason;
  • differences between the two notions;
  • dismissal for objective justified reasons;
  • hypothesis of free withdrawal;


If you need advice on challenging dismissals, resignations and related matters, do not hesitate to contact the Lanzinger Law Firm in Bolzano.

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Firing: limits and methods

Under Italian law, the power to dismiss an employee can only be exercised within specific limits and conditions, both in terms of the reasons for dismissal and the procedure to be followed.
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    Dismissal must be communicated by the employer, specifically by its legal representative, or by the individuals authorized to do so based on the distribution of personnel management authority established by the company organizational chart. Pursuant to Article 2, paragraph 1, of Law No. 604/1966, the employer must communicate the dismissal to the employee in writing, unless further formal requirements are established by collective bargaining agreements. Pursuant to Article 2, paragraph 2, the employee may request the reasons for the dismissal within 15 days of receiving the notice of dismissal; in this case, the employer must communicate the reasons for the dismissal, again in writing, within 7 days of receiving the request. If the employee has not requested the reasons for the dismissal, the dismissal is valid and effective even without the explanation of the reasons. The reasons communicated by the employer to the employee who has requested them must be specific.

Notice requirement

Pursuant to Article 2118 of the Civil Code, the employer is required to provide notice upon dismissal for justified reason.


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    The law establishes a minimum notice period for employees (see Article 10, paragraph 1, Royal Decree No. 1825/1924). In practice, however, the notice period is established for most employees by collective bargaining agreements, which determine it based on seniority and the worker's category, introducing more favorable terms. Naturally, the notice period can also be regulated by individual agreements that provide for longer notice periods than those established in collective bargaining agreements. In the event of dismissal for just cause, the employer is required to provide a notice period, as established by collective bargaining agreements. If the employer wishes to terminate the employment relationship immediately, he or she is required to pay the employee compensation equal to the total remuneration, including all items, that he or she would have received had he or she worked during that period. In the event of dismissal for just cause, the employment relationship is terminated immediately, and the employer is not required to pay compensation for lack of notice.

Motivations

Reasons for dismissal

In most cases, dismissal of an employee is possible only in the presence of specific socially justified reasons (Article 1 of Law No. 604 of 15 July 1966; Article 18 of the Workers' Statute), which may concern the employee's conduct or the company's current situation.
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    The most common reason for dismissal due to employee misconduct involves negligent or malicious conduct by the employee, the severity of which precludes continuation of the employment relationship due to the breach of trust. Depending on the severity of the conduct, Italian law traditionally distinguishes between dismissals for "just cause" and "justified reason." Just cause is a concept used in the Italian Civil Code (Article 2119 of the Italian Civil Code) to refer to conduct so serious that it precludes continuation of the employment relationship, even temporarily (in essence, not even for the period of notice required). In these cases, the employer may dismiss without giving any notice.

The justified subjective reason

"Justified reason" (subjective) is a less serious case of breach of contractual obligations, which justifies dismissal but with the employer's obligation to grant the required notice (or to pay the relevant amount).


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  • The following may constitute hypotheses of justified subjective reasons:
  • unjustified abandonment of the workplace;
  • threats and beatings;
  • insults and/or serious defamation towards the employer or hierarchical superiors;
  • repeated violations of the disciplinary code.

Other considerations

Dismissal for objective justified reasons

Sometimes layoffs are made necessary by work reorganization or production-related reasons (technological innovations, changes to production cycles, etc.), or by a company crisis.
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    That is, in cases where the company, for various reasons, no longer derives any benefit from the work performed by that employee, or, more generally, by a category of employees. For economic or technical reasons, the employer may therefore decide to dismiss one or more workers. If the dismissal affects five or more workers within a 120-day period, the employer is required to comply with the special rules for collective dismissals. If these thresholds are not met, the general dismissal rules set forth here apply.

The hypotheses of free
rescissibility

Only a few employment relationships are an exception to the rule that dismissal must be justified, where termination can be freely given (withdrawal from such contracts is referred to as free termination or "ad nutum" termination).
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  • These include:
  • domestic workers;
  • probationary workers;
  • workers over 65 and entitled to an old-age pension;
  • workers hired on fixed-term contracts (at the end of the term);
  • workers hired on apprenticeship contracts (at the end of the apprenticeship);
  • workers on sick leave (after the so-called grace period);
  • professional athletes;
  • Finally, specific rules apply to homeworkers and managers.

Resignation

Resignation is the act by which an employee unilaterally withdraws from the contract that binds him to the employer.
Under Italian law, resignation is considered a right of the employee, which can be exercised without any limitations, subject only to the obligation to provide the notice period required by collective bargaining agreements.
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    Resignation is a voluntary act of the employee, and therefore the employee's will must not be tainted (for example, by threats or deception, by error, or by incompetence), otherwise the act is voidable. The act is effective upon its coming to the employer's knowledge. Any dissent from the employer is irrelevant.

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FAQ

Detailed questions for each section designed to answer the most common doubts of potential clients of Studio Lanzinger.

  • How long do I have to challenge a dismissal?

    You have 60 days from receiving the letter to file an out-of-court appeal (including through a lawyer).

  • What happens if the dismissal is verbal?

    Verbal dismissal is ineffective. The employee must make himself available for work, also with the assistance of a lawyer.

  • Can I be fired via WhatsApp or email?

    The law requires written form. Although some judgments allow digital means if there is proof of receipt, the procedure is often contestable.

  • What is dismissal for objective justifiable reasons?

    This is related to a company crisis, department closure, or job loss for economic reasons.

  • What happens if I win my dismissal case?

    Depending on the circumstances and the size of the company, you may be eligible for reinstatement or financial compensation.