Resignation by conduct: a viable alternative to dismissal for just cause?

In its ruling no. 20 of 27 May 2022, The Court of Udine stated that absence from work without providing any justification to force the employer to dismiss for unjustified absence, is unlawful. Such conduct constitutes resignation by facta concludentia, even without complying with the electronic procedure.

The Court ruled that a worker who did not carry out the procedure, absented herself for several days to force her employer to dismiss her for unjustified absence to obtain NASPI had conducted unlawful behaviour.  The Court held that the conduct of the employer who notified the employment centre of the worker’s resignation, thus depriving her of her right to unemployment benefits, was correct.

The employment termination must be out of the worker’s control, for example in cases of disciplinary dismissal, to obtain the NASPI payment.

This is the reason for the unlawful practice by certain employees of voluntarily and unjustifiably absenting from work to be dismissed for just cause and receive unemployment benefits.

The Court stated that the electronic procedure under Art. 26 Legislative Decree no. 151/2015, while having the objective of ensuring the authenticity of the resignation submitted by the worker and allowing them to be free from conditioning, did not abrogate the effects of Articles 2118 and 2119 of the Italian Civil Code, which offered the worker the opportunity to resign “de facto” by conduct through a series of workplace absences.

The Court of Udine’s interpretation allows employment termination by conduct; a requirement included in the delegated law no. 183/2014 which remained unimplemented in Legislative Decree no. 151/2015. If the worker does not act in submitting a formal resignation – which has already factually occurred – the employment termination cannot be achieved only by dismissal for just cause.

Such a solution would be “unreasonable” and “of dubious constitutional compatibility” and contrary to the principles of reliance and good faith in an objective sense. A dismissal “imposed” on the employer would give rise to a public benefit disbursement to the dismissed person to protect a fictitious unemployment. This unemployment resulted from free choice and not involuntarily suffered by the worker.

Other related insights:

• Burden of proof for verbal dismissal rests with the employee