A worker who intends to terminate his or her employment relationship is obliged to notify the employer in advance (the so-called notice obligation).
Where this does not happen, the worker will be required to pay the employer an indemnity in lieu of notice. There are, however, some cases in which this obligation does not apply, or in which the worker may even request immediate termination of the employment relationship and be paid the corresponding indemnity in lieu.
The cases in which there is no obligation to give notice are:
- Withdrawal during or at the end of the probationary period;
- Termination of the relationship on expiry of a fixed-term contract;
- Termination by mutual consent (that is, both parties agree to end the employment relationship);
- During periods of suspension of the relationship due to the Cassa integrazione (wage guarantee fund) (Magistrate’s Court of Florence, 11 March 1988).
- In other cases, by contrast, it is lawful, or even provided for by law, for the resigning worker to be granted, in addition to normal entitlements, the corresponding indemnity in lieu of notice, namely:
- Resignation submitted by a female worker during pregnancy and by a female or male worker (who has taken paternity leave) during the child’s first year of life. In this case see the specific section under special cases.
- Resignation for just cause (for example, where the employer behaves in an abusive and offensive manner, fails to pay wages for more than two months, commits sexual harassment, or requires unlawful conduct or conduct contrary to the law): in this case the worker is instead entitled to the indemnity in lieu of notice;
Case law has specified in particular that the following constitute just cause for an employee’s resignation:
- failure to pay wages, as a serious breach;
- failure to regularise the worker’s social security position;
- failure to pay social security contributions;
- sexual harassment;
- mobbing, that is, the collapse of the worker’s psycho-physical balance as a result of vexatious conduct by hierarchical superiors or colleagues;
- offensive or abusive conduct by the employer or hierarchical superior;
- significant changes to working conditions following a transfer of the business;
- moving the worker from one workplace to another without the proven technical, organisational and production reasons required by Article 2103 of the Civil Code;
- the fact that the duties assigned to him have been emptied of content;
- the company’s attempt to involve the employee in unlawful activities;
- failure to put in place the precautions necessary to safeguard the worker’s health and professional serenity, thereby breaching the rule in Article 2087 of the Civil Code;
- assigning the worker to night work as the normal and stable manner of performing the employment relationship and failure to implement the procedures required by law.
Just cause for the worker’s resignation has been ruled out, so that the indemnity in lieu of notice is not due:
- for suspension of work due to the CIG (wage guarantee fund);
- for a change in the shareholding structure of the company to which the business belongs;
- for complaints concerning a situation already known to the worker at the time of hiring and tacitly accepted with the assignment.
Case law has held that the worker’s withdrawal is subject to the general rules on nullity (Articles 1418 et seq. of the Civil Code) and voidability (Articles 1425 et seq. of the Civil Code) of legal transactions.
The following are void:
The following are voidable:
– resignations tendered by a worker who, at the time of the act, was, even only partially or temporarily, incapable of understanding or willing;
– the worker’s resignation where his will to withdraw from the employment relationship is found to have been forced or otherwise vitiated (e.g. because extorted under the threat of being defamed).
The action for annulment may be brought only by the person in whose favour voidability is provided and is subject to a limitation period of five years (Article 1442 of the Civil Code). Where the will is claimed to be vitiated by incapacity of understanding or willing, even transient but existing at the time the acts were performed, the limitation period begins to run from the day the act was performed (Article 428 of the Civil Code).
Otherwise, where voidability depends on a defect of consent (caused by mistake) or on legal incapacity (Articles 414 et seq. of the Civil Code), the period runs from the day on which the duress ceased, the mistake or fraud was discovered, the state of interdiction or incapacitation ended, or the minor reached the age of majority
The duration of the notice period is in most cases laid down by collective agreements (CCNL) and varies according to the category of worker (blue-collar or white-collar), the grade, and length of service.
During the notice period the parties retain all the obligations and rights deriving from the employment contract.
Form
With the Fornero Reform (Article 4, paragraphs 16-23), the legislator has again regulated the manner of tendering resignation.
The validation procedure is the first novelty.
Paragraphs 17 and 18 provide, in fact, that the effectiveness of resignations and of termination by mutual consent is made subject to the condition precedent of their validation:
a) at the Territorial Labour Directorate (formerly D.P.L.);
b) or at the territorially competent Employment Centre.
As an alternative to this procedure, the employer may have the worker sign a specific declaration endorsed at the foot of the receipt of transmission of the notice of termination of the employment relationship referred to in Article 21 of Law 264/1949; paragraph 19 provides that, where the validation under paragraph 17 or the signature under paragraph 18 does not take place, the employment relationship is deemed terminated, upon the occurrence of the condition precedent, if the worker does not comply, within seven days of receipt:
1) with the invitation to attend the Territorial Labour Directorate or the territorially competent Employment Centre, or the venues identified by collective bargaining;
2) with the invitation to affix the aforementioned signature, sent by the employer by written notice;
3) with the withdrawal, that is, the worker’s “second thoughts”, which must in any case be communicated in writing.
The communication containing the invitation to attend must be sent to the worker – together with the receipt of transmission referred to in paragraph 18 – at his or her home address, or handed to the worker in person against receipt, within a period of 30 (thirty) days of the resignation or termination by mutual consent; within 7 (seven) days of such receipt, the worker has the right to withdraw the resignation and the termination by mutual consent, by offering his or her services to the employer. The withdrawal may be communicated in writing: the employment contract, if interrupted as a result of the withdrawal, resumes its normal course from the day following the communication of the revocation: for the period between the withdrawal and the revocation, if no work has been performed, the employee accrues no right to pay.
Another novelty is the extension from one to three years from the child’s date of birth of the obligation of validation at the D.T.L. of resignations tendered by the working mother or the working father (if sole parent), or to three years from the child’s entry into the family in the case of foster or adoptive parents; it is advisable to clarify from the outset that, unlike what happened under Law 188/2007, the lack of validation results in the suspension of the effectiveness and not the nullity of the resignation: the rules on dismissal are not affected and, if dismissal is given in the child’s first year of life, it is always and in any event void.
Furthermore, the institution of validation is extended to all other forms of resignation, also involving termination by mutual consent of the relationship: here too, validation becomes a condition precedent to the effectiveness of the resignation which, once validated, takes effect retroactively from the date on which it was actually tendered.
When to submit it
The date on which resignation is tendered is normally regulated in each individual contract; it may run from the first or fifteenth day of the month, or be tendered at any time.
Leave a Reply