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TERMINATION OF THE EMPLOYMENT CONTRACT - Coggle Diagram
TERMINATION OF THE EMPLOYMENT CONTRACT
INDIVIDUAL DISMISSALS (3 reasons may lead to dismissal, the first 2 cases are related to the employee's behavior ):
justified subjective reason > breach of the contract (violazione)
justified objective reason > due to economic reasons ( can not be challenged: messe in discussione). The decision can never be challenged, except for few cases
causal link
Last resort : it should be one of the last measure
there must be a good reason
justified reason > after a certain behavior of an employee it is impossible to continue with that employment contract
dismissal within 60 days and complaint with employment tribunal within 180 days
Dismissals for economic reasons, in company employing less than 16 and for employees hired after march 2015
letter of dismissal explaining the reasons of the employer
Dismissals for economic reasons, in company employing more than 16 (apart from those hired after march 2015)
procedure starts with the communication to DTL (local branches of ministry of labour ) and to the employee of the intention of dismissing him
DTL calls the parties before a Committee within 7 days (chiama entrambi le parti davanti a un comitato)
Attempt at conciliation within 20 days
Agreement / Letter of dismissal
Disciplinary Dismissals ( the company does not have to pay the employee)
Statement of Objections
Employee’s Defence
Letter of dismissal
UNLAWFUL DISMISSAL ( a dismissal is unlawful when it is unfair, it is oral, it presents formal issues and it involves a pregnant woman or a woman who is close to the marriage)
1) REMEDIES BEFORE 2012 (until 2012 there were two different regimes which covered all the possible reasons of unlawful dismissal ). These two regimes turned out to be too strict for employers because it was quite impossible to fire employees
STRONG REGIME: it applies to all the companies which have more than 15 employees > Reinstatement (reinserimento) or 15 monthly wages, at employee request + procedural salaries which are the salaries for the time of the court trial (stipendi per il tempo del processo in tribunale)
WEAK REGIME: it applies to companies with less than 16 employees > Monetary compensation between 2.5 to 6 months or new proposal of employment
2) REMEDIES MONTI-FORNERO REFORM (2012): The reform consists in 5 different regimes changing depending on two factors: the size of the company and the reasons according to which the dismissal is unlawful.
2) Reinstatement + procedural salaries or 15 monthly wages for companies employing more than 15, in case of:
unfounded charge ( accusa infondata ) or unfair dismissal for economic reasons
3) Monetary compensation between 12 to 24 monthly wages, for companies employing more than 15, in other cases
4) Monetary compensation between 6 to 12 monthly wages, for companies employing more than 15, in case of missing motivation or wrong procedure
5) Monetary compensation between 2.5 to 6 monthly wages for companies employing less than 16, unless the dismissal is discriminatory (regime 1 applies)
1) Reinstatement + procedural salaries no matter the size of the company (same as strong regime), for Discrimination, Oral dismissal, Dismissals forbidden by law, Retaliation
3)REMEDIES JOB ACTS 2015: it applies only in 2 cases > Employed after march 2015 or Companies exceeding 15 employees after march 2015
2) Reinstatement + procedural salaries or 15 monthly wages for companies employing more than 15, in case of:
unfounded charge ( accusa infondata )
3) Monetary compensation for companies > 15, in case of:
Unfair dismissals > 2 months of pay per year of service, Missing motivation or Wrong procedure > 1 months of pay per year of service
1) Reinstatement + procedural salaries no matter the size of the company (same as strong regime), for Discrimination, Oral dismissal, Dismissals forbidden by law, Retaliation
4) Company < 16: Unfounded charge > compensation between 2.5 to 6 monthly wages, Discrimination, oral dismissal, and dismissals forbidden by law: 1st regime applies, in all the other cases, the employee gets half of the compensation provided for big companies with a cap of 6 monthly wages
4) ATTEMPT AT CONCILIATION (JOBS ACT 2015) > it applies only to dismissals under the 2015 regime. Within the term for challenging the dismissal (60n days), he can offer the employee one monthly wage per year of service
Employment protection legislation (EPL) ensure workers against unfair dismissal.Termination of the employment relationship can take place in different ways:
Resignation: the employee resigns > si licenzia (almost free)
The only rule for the employee to resign is the notice period. At the beginning of an employment contract there is a trial period (periodo di prova ) which is important for both parties: the employer checks the professionality and personality of his workers while the employee checks the job satisfaction. According to the legislation this period is maximum of 6 months but usually is less ( from few days to few months for high skilled workers). In this trial period there is the free termination of the contract (termination at will) for both parties; this means that they can end the relationship without providing reasons. The employee can discuss the termination of the contract in case of
The trial period has been too short to really evaluate the worker.
there is discrimination
the employee has not been tested on the tasks given to him, but on different ones.
when the employee can prove that he successfully passed the trial.
If the employee wants to quit immediately he has to pay to the employer the money equivalent to the notice period
Before the beginning of the relationship the employer gives the employee two contracts to sign:
employment contract
blank resignation letter: informing the company of the employee’s resignation. With this new online procedure the letter is automatically sent to the employer and once the employee has sent it, has still 7 days to change his mind. This procedure doesn’t apply to:
Civil servants
Trial period
Women close to marriage
Pregnant women (from the very first moment until 1 year of the child)
Homeworking
Parents (children up to 3 years)
Mutual agreement: it is an agreement between the employer and the employee
Dismissal: the employer fires the employee (restricted).
Death (this case is not regulated by legislation)
WHY DISMISSAL SHOULD BE LIMITED ?
Unique characteristics of employment relationship
Economic dependency: the employee depends economically on this relationship
Psychological dependency: work is a mean for self-realization.
Human being and their dignity are involved
Force firms to internalize some of the social costs of dismissal > If an employee is fired and get depressed, the health system should help him, and this would become a cost for the society.
Increase rights effectiveness
Subordination in exchange for security: democratic deficit is compensated with some mandatory minimum security provided by EPL
WHY DISMISSAL SHOULD NOT BE LIMITED ?
EPL involves some costs for the company related to the dismissal:
Economic costs
Transaction costs: time wasted by the employer in the dismissal procedure
Dualization of the labour market ( it exists because it's difficult to prove before a court that an employee is “lazy” ). In the labour market there are insiders and outsiders
Outsiders: these are unemployed workers or just temporary workers that are easy to fire (It is difficult for an outsider to replace an insider )
Insiders: these are workers with a permanent employment contract that are difficult to fire
THE SOLUTION IS IN THE MIDDLE: dismissal should be limited, but not in an exaggerate way.
EXCEPTIONS
legal rules for dismissals do not apply to :
Home workers
Professional athletes
Trial period: the only protection that apply is in case of discrimination, oral dismissal, forbidden by law.
Executives: they find protection in their CAs
Dismissals are prohibited for:
Pregnant women (until the age of 1 of the children)
Marriage (until one year after the marriage)
Sick or injured employees
COLLECTIVE REDUNDANCIES ( dismissals for economic reasons that normally involve a lot of employees and the procedure requires trade unions). It happens in companies with more than 15 employees when the employer fires at least 5 employees. The procedure:
1) the employer communicates the reasons of the dismissals, why it is inevitable (inevitabile), timing of dismissal, the extra number of employee
2) the employer has to pay in advance to INPS.
3) then the workers’ representatives and trade unions can find a solution. If they are able to find it there is an agreement if not they can pass to the second stage of joint consultation
4) If the public authority find a solution there is an agreement if not the dismissal procedure can start.
5) For giving the dismissal the employer has to check: number of the people in the family, seniority and Technical and productive needs of the company
REMEDIES
For workers who are not under the Jobs Act:
Oral dismissal: remedies are reinstatement, or 15 monthly wages, and procedural salaries.
Procedural violation: remedy is monetary compensation between 12 to 24 monthly wages.
Violation of selection criteria: remedies are reinstatement, or 15 monthly wages, and procedural salaries (capped to 12 monthly wages).
For workers under the Jobs Act:
Procedural violation or violation of selection criteria: remedy is 2 monthly wages per year of service
Oral dismissal: remedies are reinstatement, or 15 monthly wages, and procedural salaries