Does the Employer Unilaterally Terminate the Employment Contract?

The dismissal involves a series of bureaucratic and administrative procedures, including:

 

  • Introduction;
  • Notice obligation;
  • Reasons for dismissal;
  • Justified subjective reason;
  • Differences between the two concepts;
  • Dismissal for justified objective reason;=
  • Hypotheses of free termination;
  • Resignation.

 

If you need legal advice regarding the appeal of dismissals, resignations, and related issues, don’t hesitate to contact the Lanzinger Law Firm in Bolzano.

See contact details

Dismissal: Limits and Procedures

Under Italian law, the power to dismiss can only be exercised within the framework of precise limits and procedures, both regarding the reasons for termination and the procedure to follow.

  • continue

    Dismissal must be announced by the employer, and in particular by its legal representative, or by the persons authorised to do so on the basis of the distribution of personnel management power established by the company organisational chart. 


    Pursuant to Article 2(1) of Law No. 604/1966, the employer must notify the employee of the dismissal in writing, unless further formal requirements are established by collective bargaining. Pursuant to paragraph 2 of the aforementioned Article 2, the employee within 15 days of receiving the notice of dismissal may request the reasons for the dismissal; in this case the employer must communicate - again in writing - the reasons for the dismissal within 7 days of receiving the request. 


    If the employee has not requested to know 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 made the request must be specific.

Notice Obligation

When dismissing for a justified reason, the employer is obligated – under Article 2118 of the Civil Code – to provide a notice period.

  • continue

    The law establishes the minimum duration of the notice period for employees (see Article 10(1) of Royal Decree Law No. 1825/1924).


    In practice, however, the length of the notice period is established, for the generality of employees, by collective bargaining, which determines it according to length of service and the category of the employee, introducing more favourable terms. 


    Naturally, the duration of the notice period may also be regulated by individual agreements that provide for longer notice periods than those established in collective agreements.


    In the case of dismissal for a justified reason, the employer is obliged to give a notice period laid down in collective agreements. 

    If he wants to terminate the employment relationship immediately, he is obliged to pay the employee an indemnity for lack of notice, equal to the remuneration, total of all its items, that he would have received if he had worked during that period. In the event of dismissal for just cause, the relationship is terminated immediately and the employer does not have to pay any severance pay.

Motivations

Reasons for Dismissal

In most cases, dismissal of an employee is only possible in the presence of specific socially justified reasons (Article 1 Law 15 July 1966, No. 604; Article 18 of the Workers' Statute), which may concern the employee's conduct or the company's situation.

  • continue

    The most frequent reason for dismissal due to the employee's fault concerns negligent or malicious behavior by the employee, the seriousness of which does not allow the continuation of the employment relationship due to the breach of the fiduciary bond.

    In relation to the seriousness of the conduct, in Italian law a distinction is traditionally made between dismissals for "just cause" and for "justified reason".

    Just cause "Just cause" is a concept used by the Italian civil code (art. 2119 c.c.) to refer to behavior so serious that it does not allow the continuation of the relationship even on a temporary basis (in essence: not even for the time provided for the notice of dismissal). In these cases, the employer can dismiss without giving any notice.

Justified Subjective Reason

Sometimes dismissal is necessary due to a reorganisation of work or reasons related to production activities (technological innovations, changes in production cycles, etc.), or due to a company crisis.

 

  • continue

    The following may constitute subjective justifications

    unjustified abandonment of the workplace;

    • threats and beatings;
    • insults and/or serious defamation against the employer or hierarchical superiors;
    • repeated violations of the disciplinary code.

Other considerations

Dismissal for objective justified reasons

Sometimes dismissal is necessary due to a reorganisation of work or reasons related to production activities (technological innovations, changes in production cycles, etc.), or due to a company crisis.

  • continue

    That is, in cases where the company, for various reasons, no longer derives utility from the work performed by that employee, or, in general, 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 period of 120 days, the employer must observe the special rules for collective dismissals. 

    If these thresholds are not reached, the general rules on dismissals set out here apply.

The hypotheses of free

rescisibility

A few types of employment relationships are exceptions to the rule of required justification for dismissal, where termination can occur freely (in relation to termination from such contracts, this is referred to as free termination or "ad nutum" termination).

  • continue

    These include: 

    • domestic workers;
    • workers on probation;
    • workers over 65 and entitled to an old age pension; 
    • workers employed under a fixed-term contract (at the end of the term) 
    • workers employed under an apprenticeship contract (at the end of the apprenticeship)
    • workers on sick leave (when the so-called ‘comporto period’ is exceeded);
    • professional athletes;
    • Finally, specific rules apply to homeworkers and managers.

Resignation

Resignation is the act through which an employee unilaterally terminates the contract binding them to the employer. Under Italian law, resignation is a right of the employee, which can be exercised without limit, as long as the notice period specified by collective agreements is respected.

  • continue

    The resignation consists of a voluntary act of the employee, and the employee's will must therefore not be vitiated (e.g. by threats or deception, error or incapacity), failing which the act is voidable. 

    The act takes effect when it comes to the knowledge of the employer. Any dissent on the part of the employer is of no relevance.

Call the office and schedule an appointment to discuss the appeal of a dismissal!

Request legal assistance