1.1 Justificación
1.1.4 Formulación del problema de investigación
Employees
The dismissal of an employee is valid only when there is a true and just cause (gross misconduct of the employee, involving the immediate termination of the working relationship without any notice period) or a justified reason (less serious misconduct of an employee, or business reasons such as the company’s winding-up, reorganization, etc.). In the case of dismissal for a justified reason a notice period must be given.
If the dismissal of an employee is not based on one of the above grounds, and the employee obtains a declaratory judgment of unlawful dismissal, the economic consequences depend on the size of the employer:
Employers with more than 15 employees working in the production unit, or 60 •
employees nationwide, are obliged to take back the employee and pay him the remuneration that he would have earned from the date of dismissal to the date that he goes back and, in any case, not less than five months’ pay. If the employee does not wish to go back, he is entitled to ask the employer to pay an indemnity equivalent to 15 monthly salaries instead (plus his remuneration from the date of dismissal, which in any case, is not less than five months’ pay)
Employers with less than 15 employees are not obliged to take back the dismissed •
employee. They can confirm the dismissal and pay an indemnity ranging from two and a half to six monthly salaries.
Notice period. When an employee is dismissed for a justified reason, the employer must
give the employee notice, the length of which is established by the CCNL according to the employee’s job title and years of work.
If there is true and just cause, the employment relationship can be terminated immediately.
Executives
The rules described above are not applicable to executives. CCNLs for executives (which are different for each sector) generally state that there must be good grounds for the dismissal of an executive. Therefore, an executive may contest his dismissal and seek damages if the dismissal is not supported by any valid reason.
CCNLs for executives in the trade sector state that an executive who has been unfairly dismissed has the right to receive an additional indemnity of 18 months’ salary (plus other indemnities based on the executive’s age), plus the notice period.
Notice period. CCNLs for executives specify that the length of the notice period (from six
to 12 months) depends on the seniority of the executive.
Redundancy procedures - collective dismissals
A collective dismissal is when an employer with more than 15 employees intends to dismiss more than five employees within 120 days.
When a company intends to start a collective dismissal, it must follow a particular redundancy procedure. This procedure also applies when a company is closed down. Law no. 223 of 23 July 1991 establishes the steps to be taken:
The company must give advance written notice to its internal union representatives and •
to the trade unions of its intention to start the redundancy procedure
The written notice must also be sent to the local office of the Ministry of Labour and •
include a copy of the receipt for the payment made to the Social Security Office (INPS - Istituto Nazionale della Previdenza Sociale) to start the collective dismissal procedure Within seven days of receiving the notice, the trade unions can request a meeting •
with the company’s management in order to examine the reasons for the decision and evaluate possible alternative solutions. This first phase expires within 45 days of receipt of the notice
Should the two parties not come to an agreement, another attempt has to be made by •
the manager of the local office of the Ministry of Labour. This phase expires within 30 days of the date of the notice given by the company to that authority, informing it of the results of the consultation with the trade unions and the reasons for the negative outcome
Once an agreement with the trade unions has been reached, or the procedure has been •
completed, the company’s management has to inform the employees of their dismissal in writing, in accordance with the terms and conditions communicated beforehand to the trade unions.
On receipt of their dismissal indemnity the employees normally sign an official settlement agreement at the Provincial Office of the Ministry of Labour (Direzione Provinciale del Lavoro). This is to avoid any future disputes and claims against the company.
The trade unions usually ask for additional amounts, which may range from six to 24 monthly salaries (or even more).
The sole purpose of the sum distributed to the employees as a dismissal indemnity is to avoid any disputes and claims against the company before the judicial authorities.
The company will also have to pay the dismissed employees all the other indemnities provided for by Italian law and by their CCNL, such as an indemnity in lieu of notice, TFR, additional monthly instalments, and outstanding holiday leave. Such payments cannot be considered or treated as a leaving incentive.
This procedure applies to all employees, excluding executives.