As of March 12, 2016, resignation and termination by mutual consent are not valid if provided in writing; in fact, the Jobs Act’s reform introduces a new mandatory online procedure for such cases. The reform is aimed at countering the blanket resignation phenomenon (i.e. the unlawful practice of requesting that an employee sign a resignation letter at the time of hiring, without providing a resignation date. In doing so, the employer is in position to oblige the employee to resign at any time) by establishing an unique, mandatory procedure to be followed. Failure to follow the procedure shall lead to the invalidation of the resignation/termination by mutual consent. The employer must now receive a formal communication by email.
Scope of the new procedure
The new procedure applies to all employment contracts, except for those governing the employment of domestic workers and seafarers.
In addition, it does not apply in the following circumstances: (i) during a probationary period; (ii) at the end of conciliation proceedings before a trade union, labour court or labour office (“DTL”); and (iii) during pregnancy or within the first three years of a child’s life. In this last case, termination must be confirmed by the employee before the DTL.
According to the Labour Minister’s Circular no. 12/2016, the new procedure shall not be applicable to public employment contracts.
The online procedure
Employees must follow an online procedure, available on the website of INPS (i.e. National Social Security Institute), by filling out a specific form. In doing so, the employee may be assisted by qualified entities (“soggetti abilitati”), such as “patronati”, trade unions, bilateral entities and certification offices of the DTL.
In addition to data requested for the purpose of identifying the employer and the employment relationship to be terminated, the employee must indicate the resignation date, i.e. the day following the last day of work.
But what if the employee inserts an incorrect resignation date or thereafter the parties agree a different termination date? In cases such as these, the employee shall not be required to fill in a new form with a different resignation date. In this regard, the Labor Minister has recently clarified that the procedure is only aimed at communicating the intention of the employee to terminate the employment relationship: the effective date of termination will be that reported in the relevant mandatory communication, filed by the employer within five days of the end of the employment relationship.
The communication, generated at the end of the procedure, will be automatically sent to the employer and the DTL.
Within seven days of the filing of the form, the employee can withdraw the resignation, by filling out the same form appropriately.
In cases where the employee does not intend to follow this procedure, the employer must invite him/her to proceed by completing the online form. After numerous unsuccessful solicitations, the employer must terminate the employment contract.
Sanction for employers
Article 26, paragraph 4, of the Legislative Decree 151/2015 provides that, unless the act constitutes an offence, employers who alter the termination form shall be punished with administrative fines, ranging from EUR 5,000.00 to EUR 30,000.00, issued by the competent DTL.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
