- Formal Requirements for Dismissal and Resignation
- Practice Problems with Resignation
- New Rules on Resignation
Under Italian law an employment relationship is permanent except in cases, specified by law, in which the employer and the employee agree to a temporary employment relationship, in which case the parties must specify the duration of the contract in writing; thus, the relationship is automatically terminated on an agreed date.
In the case of a permanent employment relationship (for which there is no fixed termination date) and a temporary employment relationship before the termination date, the Civil Code provides that both parties may terminate the relationship, either giving a notice period or with immediate effect where one party has just cause.
In such circumstances, dismissal (ie, unilateral termination of the relationship by the employer) is permissible only for a justifiable reason, whereas resignation (ie, unilateral termination by the employee) does not require a specific justification; moreover, until recently an employee was not necessarily required to follow a particular procedure or fulfull formal requirements.
One of the more significant negative consequences of this disparity was the use of undated resignation letters, which some employees were required to sign when they were hired. However, new rules and procedures introduced by a recent law aim to prevent such unlawful conduct in future.
Formal Requirements for Dismissal and Resignation
Italian law prescribes more detailed formal requirements for dismissal than for resignation.
Formal requirements for dismissal
Notice of dismissal must be made in writing; otherwise, it will be considered void.
Moreover, if the dismissal is based on just cause or a subjectively justified reason, Article 7 of Law 300/1970 requires the employer to comply with the following procedure:
- The employer must send a letter to the employee to challenge his or her conduct;
- Within five days of receiving the letter, the employee may reply with an oral or written justification (with the assistance of a trade union representative if the employee so wishes);
- If the employer does not accept the employee’s justification, it is entitled to send the employee the letter of dismissal describing the reasons for the dismissal; and
- The dismissal is effective upon the employee’s receipt of the letter.
In Decision 7880, issued on March 30 2007, the Supreme Court extended this procedure - and the guarantees provided by Article 7 - to all managers (‘dirigenti’), including senior managers. Before this decision, the procedure applied only to middle and junior management.
Formal requirements for resignation – the old rules
Before the recent changes, an employee could resign by making an oral statement, except where written resignation was required by the applicable national collective agreement - only in such cases was an oral resignation considered void. The resignation was effective upon receipt by the employer.
In specific cases the law required that the resignation be confirmed by the employee before the labour inspectorate of the provincial labour office (Direzione Provinciale del Lavoro - Servizio Ispezioni del Lavoro) in order to allow the inspectorate to verify that the unilateral termination of the employment relationship complied with the regulations. This requirement applied if, for example, the employee was (i) a recently married female employee, or (ii) a working mother who resigned during the period before or after the birth of her child in which she could not be dismissed.
Practical Problems with Resignation
Thus, on issues of dismissal a detailed procedure with appropriate guarantees was provided for all categories of employee, whereas comparable provisions did not exist for resignation, which could be effected orally in some cases.
The reasons for these significant differences were connected to the need to protect employees in the event of involuntary termination by preventing unlawful conduct by the employer.
However, the previous regime was susceptible to abuse. An employer could force an employee to terminate the employment relationship by requiring him or her to write a resignation letter. Moreover, the employer could even unlawfully force the employee to draft and sign an undated resignation letter at the beginning of the employment relationship, giving the employer the power to terminate the relationship at any time.
On other hand, if a resignation was made orally, the employee could change his or her mind and deny that he or she had resigned. Even if the resignation was made in writing, an employee could allege that he or she had written the letter under duress.
Thus, in order to avoid these problems, employers were forced to ask employees to confirm their intentions before the competent provincial labour office, even in cases where this procedure was not required by law.
New Rules on Resignation
In light of the above, on October 17 2007 Parliament approved Law 188/2007, which aims to prevent unlawful conduct by either party in the employment relationship.
The law provides for the introduction of mandatory written resignations for all categories of employee.
The resignation must be presented on an appropriate form distributed by the Ministry of Labour and Social Security. The forms are numbered in chronological order and become void 15 days after their date of issue. Once the form has been signed by both parties, a copy must be filed with the competent provincial labour office.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.