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Work contracts are the agreement stipulated between employers and workers, on
the basis of which workers offer their services in exchange for a salary paid by
an employer.
The various terms of a contract (salary, working hours, holidays, etc.) are
normally already established by collective national labour contracts. Work contracts are normally open-ended. However, this does not exclude the
possibility of introducing expiry dates into a contract for certain technical
reasons or owing to special conditions created by production or organisational
factors or for the purpose of providing for the possibility of replacement as
determined by recent legislation governing fixed-term employment contracts
contained in Legislative Decree No 368/01, which introduces Council Directive
(EC) No 1999/70/EC into Italian law.
Fixed-term contracts must be in writing and must specify the length of
the contract: at the expiry date the contract is considered to be terminated.
Stipulation of a work contract, whether for fixed-term or permanent employment,
may include conditions relating to a trial period, the aim of which is to verify
the suitability of workers for the duties and tasks they have to perform. The
duration of such periods is laid down in the collective contracts.
Trial periods of employment must be recorded in written form. Documents
certifying such periods of employment must be drawn up before or at the same
time the period of employment begins.
In accordance with Article 2118 of the Italian Civil Code (Codice Civile),
in the case of withdrawal from a work contract, each of the contracting parties
must provide prior notice within the time period and in compliance with the
procedure laid down in the collective contract. If notice is not given, the
party withdrawing from the contract is obliged to pay the other party
compensation of an amount equating to the anticipated remuneration over the
period of notice.
For open-ended contracts, and fixed-term contracts before the end of the
fixed term of the contract, there are the following possibilities for
terminating the contract:
- Unilateral termination by the worker: resignation. Resignation is
the act by which a worker withdraws from a contract. Resignation must be
recognised as an act of unilateral withdrawal, and as such it does not
require a concurrent intention on the part of the recipient. Workers may
withdraw from a work contract at any time provided they respect the terms of
notice;
- Mutual termination of contract (Article No 2113 of the Codice
Civile): termination characterised by a mutual intention on the part of the
employer and worker.
- Unilateral termination by the employer: dismissal. There are
various types of dismissal:
- Dismissal without restrictions (ad nutum) requires no specification of
a motivation and is applicable in a limited number of cases. This type
of dismissal may apply in domestic work, to managerial staff, workers
who have acquired the right to retire and workers undergoing a period of
trial employment.
- Dismissal for a just cause (Article No 2119 of the Codice Civile) may
occur when there is a cause for dismissal which impedes even temporary
continuation of employment. In such cases, termination of the contract
occurs without notice. A just cause is the behaviour of a worker (either
in the workplace or in any other place) which damages the element of
trust at the basis of a working relationship, e.g. acts of violence
committed to the detriment of a co-worker, theft of company property,
etc.).
- Dismissal for a justified reason. This can be connected to a worker's
failure to fulfil a requirement (subjectively justified reason) or for
reasons of productivity, the organisation of work and its smooth
operation (objectively justified reason) (operations have ceased;
bankruptcy; removal of worker's post). Dismissal for a justified reason
requires the employer to give notice to the worker. To protect workers, dismissal for a justified reason must be notified by
the employer in full observance of the formalities and procedure
established by law.
Within 60 days following receipt of a notice of dismissal, workers may make
an appeal by filing a petition against such action at the Court of a labour
magistrate (Pretore del Lavoro) or by attempting to obtain a settlement
with the support of a trade union or the provincial labour commission (Direzione
Provinciale del Lavoro).
Withdrawal without a just cause or a justified reason results in the
obligation on the part of employers who have up to 15 staff to reintegrate
workers (obligatory protection) in their former status of employment or to
re-employ them, establishing a new contract and working relationship.
In the case of employers with more than 15 staff, a declaration of
illegitimacy of the termination of a contract results in an order to reinstate
workers in their former status of employment with the same position and duties
(real protection).
Dismissal through force majeure occurs when it is impossible to
continue a working relationship due to causes beyond the control of the parties
involved. Such causes include death of the employee, or arrest or imprisonment
in cases where the absence of the employee is incompatible with the requirements
of a firm or organisation and/or when a crime committed by the employee has a
negative effect on the working relationship and/or undermines the trust between
the parties involved.
Useful references:
- Civil Code (Article No 1325 – Work contracts; Article No 2096 – Trial
periods; Article 2118 – Notice; Article No 2119 – Just cause).
- Law No 604/66; Law No 300/70; Law No 108/90: Individual dismissals
Source: European Union
© European Communities, 1995-2006
Reproduction is authorised.
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