On 16 June 2021, Confcommercio Imprese per l’Italia and Manageritalia signed an agreement to extend the NCLA of 21 July 2016 until 31 December 2021. With the same agreement, the Social Partners have amended some Agreement provisions. The main changes include the maximum duration of the protected period, which is confirmed as 240 days in a calendar year, clarifying that “calendar year” means 365 days backwards from the last illness. In addition, from July 1th , 2021, the employer shall pay to an organisation called CFMT (Centro di Formazione Management del Terziario – Tertiary Management Training Centre), , a contribution of €2500 – if there is an employment relationship termination, including following a settlement agreement or conciliation, except in the case of termination for just cause, disciplinary dismissal, voluntary resignation and consensual termination – for the activation of an outplacement service or for access to active policy programmes aimed at outplacement of executives. New concepts are introduced about the  notice period commencement in case ofresignation or dismissal. The notice period for dismissal, from 1 July 2021 shall commence on the 1st or 16th day of each month, depending on whether the employer receives the resignation notice in the second fortnight of the previous month or the first fortnight of the current month, respectively.  Effective from 1 July 2021, the notice period for dismissal  shall run from the 1st or 16th day of each month, depending on whether the executive receives the dismissal notice in the second fortnight of the previous month or the first fortnight of the current month, respectively. The executive shall be entitled to receive their full remuneration for the portion of the month in which the dismissal notice was received.

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Faced with the pandemic emergency in progress, the Legislator and the Government have introduced rules aimed at safeguarding jobs, allowing the use of wage supplements and imposing a ban on dismissal for justified objective reasons pursuant to Article 3 L. n. 604/1966 and collective dismissal pursuant to Law no. 223/1991, except for the following hypotheses:

  • definitive cessation of the business, with liquidation of the company (please note: the closure of a production unit does not in itself lead to the suspension of the ban on dismissal);
  • collective company agreement with the comparatively most representative trade unions on a national level, with an incentive to terminate the relationship for the employees who adhere (with right to NASPI), even if it is a consensual termination (territorial or corporate divisions would seem excluded;
  • bankruptcy without any provisional exercise of the activity, with total cessation of the same.

A further hypothesis was also introduced with respect to the prohibition of dismissal. The conversion of the D.L. n. 18/2020, through Law no. 27/2020, has in fact amended Article 46, regarding the suspension of dismissals according to which the suspension of collective procedures for staff reduction and those due to dismissals for justified objective reasons pursuant to art. 3 of the law n. 604/1966, do not apply in the “hypothesis in which the personnel affected by the dismissal, already employed in the contract, are hired following the takeover of a new contractor by virtue of the law, of the national collective labor agreement or clause of the contract“.

Source: Guida al lavoro de Il Sole 24 ore.

With the recent decision no. 1170 of 17 June, the Court of Cassation has provided interesting clarifications on the fourth paragraph of Article 18 of Law no. 300/70 (so called “Statuto dei Lavoratori”), a provision which – as is well known – provides for the reinstatement of an employee unlawfully dismissed if the claimed fact is inexistent or if the fact is punishable by a conservative sanction on the basis of the collective bargaining agreement.

According to the Court of Cassation, the remedy of reinstatement is applicable “only if the facts ascertained are specifically covered by the provisions of collective agreements or disciplinary codes applicable as punishable by a “conservative sanction”.
Beyond such a theory, “the disproportion between the conduct ascertained and the expulsive sanction “falls within the “other cases” in which there are no grounds for subjective justified reason or just cause, for which Article 18, paragraph 5, provides for the indemnity protection”.
This conclusion is based on the assumption of the exceptional nature that the reinstatement protection takes on in the context of the new article 18 and in application of the general principle that a rule providing for an exception to the general rule must be interpreted restrictively.

Continue here to read the full version of the article in Italian language.

Fonte: Il Quotidiano del Lavoro

On 3 June 2020 the National Labour Inspectorate (“INL”) issued note no. 160, providing explanations related to the amendments and additions made to Italian Decree Law no. 18 of 17 March 2020 (“Save Italy Decree”) converted in Italian Law no. 27 of 24 April 2020, by Italian Law Decree no. 34 of 20 May 2020 (“Relaunch Decree”).

In this discussion we will focus on the indications provided by INL concerning collective and individual dismissals for justified objective reason and extension or renewal of fixed-term contracts.

1.         Collective and individual dismissals for justified objective reason

INL explained that, when the Save Italy Decree was converted into law, a new exclusion was introduced to the ban on dismissals for cases where “the personnel involved in the termination, already employed in the contract, is rehired after take over by a new contractor by law, the national collective employment contract or clause of the tender contract”.

Therefore, termination by the previous employer is considered lawful only if the new contractor hires the employee. Vice versa it is not possible to dismiss a worker who is not rehired by the new contractor.

In terms of the extension on the ban, it was restated that it is not possible to start collective dismissal procedures from 17 March 2020 until 17 August 2020, while pending ones, started after 23 February, are suspended for the same period.

Likewise, the ban on dismissal for justified objective reason as per art. 7 of Italian Law no. 604/1966 is extended for the same period and suspension is envisaged for the relative procedures in progress, i.e. those not yet defined on the date the Relaunch Decree became effective.

The note then reiterates the contents of paragraph 1 bis according to which, if the employer exercised termination in the period between 23 February and 17 March, the same may revoke it as long as “the employer requests the exceptional redundancy fund, as per article 22, from the date when the dismissal became effective” and “in that case, the employment is considered restored without interruption and without charges or penalties for the employer”.

However, INL did not explain how to manage:

  • those dismissals implemented on 17 and 18 May 2020 based on the delay in issuing the Relaunch Decree, despite the fact that it does not seem possible to deviate from the non-retroactive principle of the legislation;
  • dismissals of managers, formally excluded from the ban on dismissals, since the legislation expressly refers to the employment contained in art. 7 of Italian Law no. 604/2020.

Continue here to read the full version of the article (in Italian).