Business Labour Law

Termination of an open-ended contract

RT TALIAN IVIL ODE- Art. 2118. Termination of an open-ended contractFreedom for the employer and the employee (same freedom : only obligation is the notice period)- Each of the contractors can withdraw from an open-ended employment contract, giving notice in terms and ways established by collective1. agreements, by customs or equity.In the absence of notice, the withdrawer is held to the other part of an indemnity equivalent to the amount of remuneration that would2. be due for the notice period. (economic equivalent of the notice period)The same allowance is payable by the employer in the case of termination of the relationship due to the death of the employee.3. notice period is neededA . 2119 I C CRT TALIAN IVIL ODE- Art. 2119. Withdrawal for just causeEach of the contractors can withdraw from the contract before the term, if the contract is a fixed- term contract, or without notice, if the-contract is an open-ended contract, if there is a just cause that does not allow the continuation,

even provisional, of the contract labour relationship. no notice period with a just cause- Just cause : a reason to end a contract immediately (a serious event that makes the continuation of the contract impossible : misconduct)Employee side : worker resignation-- Unilateral act : worker can decide to withdrawa. Resignation for Justified Reason: art. 2118 c.c. (with notice)Subjective justified reason: ex: employer bad behaviour‣b. Resignation for Just Cause : art. 2119 c.c.Employer very bad behaviour (without notice)‣- Blank Resignation Letters (Dimissioni in bianco)When an employee is recruited, he is asked to sign the employment contract tougher with a blank resignation letter which, being‣ updated, can be enforced by the employer whenever he or she might decide- Fight against the blank resignation letters :For Nero Law : obligation of validation + sanctions‣ 1 - 4 {chapter }Jobs Act, art. 26 d.lgs. 151/2015 : resignation through the website of Ministry of Labour‣ 7 days

determined by a significant breach of the contractual obligations of the employee or by‣ reasons inherent to the production activity, the organization of the work and the regular functioning of it. (Art. 3, l l. 604/66)

Subjective justifiable reason

• Dismissal for Subjective Justifiable Reason
• A serious non-fulfilment of the employee's contractual obligations
• Less grave nature compared to the dismissal for just cause
• Examples: repeated and unjustified absence form work for some days

Objective justifiable reason

• Dismissal for Objective justifiable reason
• Objective justifiable reason has nothing to do with the employee's behavior but is concerned with the enterprise's technical or production requirements (entreprise)
• Two conditions:
1. an employee did not fulfil his obligations
2. the technical or organizational reasons cited by the employer in support of management decisions

actually exist; thea serious damage to the employer’s property due to‣ employer must give evidence of this economic situation:negligence b. that dismissal is the necessary consequence of thesedecisions- Examples :restructuring or reorganisation of the company, low‣ productivity, closing of the company

The form of Dismissal- Art. 2, Law 604/66:

The employer must communicate the dismissal to the employee in writing

1. The dismissal has its effects from the moment it is known by the employee‣The communication of the dismissal must contain the specification of the reasons that determined it
2. As from Act 92/2012, reason of termination must be provided within the termination letter when the termination letter is served‣ Before Act 92/2012, the employee could request the justification within 15 days from the notification and the employer had 7 days toreply.

It is a unilateral act and produces effects only once the employee has been noticedEmployee prepares its defence‣ 2

• Chapter 4: How to appeal a dismissal
  Art. 6, law 604/66
• The dismissal must be challenged under penalty of forfeiture within sixty days from the receipt of his communication in writing, or from the communication, also in writing, of the reasons, if not contextual, with any written deed, even out of court, suitable to render note the willingness of the worker also through the intervention of the union organization aimed at challenging the dismissal itself. 60 days + 180 days
• The appeal is ineffective if it is not followed, within the following one hundred and eighty days, by the filing of the appeal in the registry of the court as an employment judge or by the communication to the other party of the request for an attempt at conciliation or arbitration, without prejudice to the possibility to produce new documents formed after the filing of the appeal.
• If the requested conciliation or arbitration is refused or the agreement necessary for its execution is not reached, the appeal

to the judge must be filed under penalty of forfeiture within sixty days of refusal or non-agreement. The praetor is competent to know the disputes deriving from the application of this law.

Dismissal:

• Fair: Termination of contract is only possible for "just cause" or "justifiable reason", including significant noncompliance with contractual obligations by the employee (subjective reasons), and compelling business reasons (objective reasons).
• Unfair:
  • No just cause or justifiable reason
  • Discriminatory dismissals: Dismissals reflecting discrimination on grounds of race, religion, gender, trade union activity, etc.

Art. 4, L. 604/66

The dismissal determined for reasons of political belief or religious faith, membership of a union and participation in union activities (as in the case of strike for ex) is null and void, regardless of the motivation adopted.

The employee must give the evidence of the discrimination but often discrimination is

less favourable treatment in case of unfair dismissal

• Big Companies and Small Companies (< 15 employees)

Unfair dismissal:

• Disciplinary Dismissal (Just Cause or Justifiable Subjective Reason)
• Discriminatory dismissal: Unfair dismissal - Old and New Workers, same treatment:
• Disciplinary Dismissal (Just Cause or Justifiable Subjective Reason), and
• Economic Dismissal (Justifiable Objective Reason)

a. Reinstatement + indemnity

• The court will order the company to compensate up to 12 months' pay (subject to social security contributions) that the employee would have received from the date of dismissal until the date of reinstatement
• Old workers: Reinstatement + indemnity

b. Indemnity from 12-24 months (instead of reinstatement)

• a. Reinstatement
• New workers: b. Indemnity 2.5 - 6 months of salary

- or pay him or her the equivalent

of compensation of 12 months (max)

a. only indemnity (1 month salary for -15 months' salary (the employee has

b. or indemnity (2 months salary for each year of work, min 2 max 6)- the choice between the

each year of work, min 4 max 24 reinstatement or the indemnity)

Economic Dismissal (Justifiable Objective-Reason)

- Old workers:

a. indemnity from 12-24 months

- New workers:

a. indemnity (2 months salary for each

year of work, min 4 max 24)

L 300/70

AW- L 92/2012 – F LAW ORNERO AW- J A – D. . 23/2015

OBS CT LGS- 4 - 4 {chapter }

Introduction to European Labour Law The Council of Europe (CoE), From the European: