In its recent Order no. 6782 of 14 March 2024, the Italian Court of Cassation affirmed the following principle of law: “in the case of a permanent employment relationship, the employer’s waiver of the notice period, in the face of the worker’s resignation, does not give rise to the latter’s right to obtain compensation in lieu of notice because of the mandatory nature of notice”.
An employee resigned and her employer agreed to exempt her from working during her notice period, without paying her the relevant compensation in lieu of notice.
The resigning worker applied to the court for payment of the compensation in lieu of notice.
The Court of Pisa upheld the worker’s application and, on appeal, the ruling was also confirmed by the Florence Court of Appeal.
Both lower courts based their reasoning on the assumption that the employer, despite having exempted the appellant from working during her notice period, was nevertheless obliged to pay the equivalent of the amount of the salary that would have been due to the applicant for the notice period.
The company appealed against the decision of the Court of Appeal to the Italian Court of Cassation.
The Italian Court of Cassation judges, reversing the first instance ruling, held that in the context of a permanent employment relationship, the employer’s waiver of the notice period in the face of the employee’s resignation “does not give rise to the latter’s right to obtain compensation in lieu of notice because of the mandatory nature of notice”.
The judges therefore emphasised that notice is mandatory and, therefore, if one of the parties exercises the right to withdraw with immediate effect, the relationship also terminates immediately, and the only obligation that arises is that of the withdrawing party to pay the compensation in lieu of notice.
According to the Italian Court of Cassation judges, however, the other party can waive the notice without paying anything to the other party, who cannot claim any right to the continuation of the employment relationship until the notice ends.
On this basis, the Italian Court of Cassation upheld the appeal brought by the company, ruling that the resigning worker was not entitled to compensation in lieu of notice.
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By judgment No. 429 of 27 April 2023, the Court of Turin established that resignation for just cause giving entitlement to the unemployment allowance ‘Naspi’ does not require the worker to prove that the transfer was unjustified if the new place of work is more than 50 km away from his/her residence.
The case stemmed from the resignation for just cause submitted by the worker in connection with the transfer of her place of employment from Turin to Trieste. In particular, the resignation was due, as indicated in the notice of resignation, to the refusal to ‘move to another location more than 80 km away from her residence’.
The request to access Naspi following the resignation following the transfer was rejected by National Social Security Entity (INPS, Istituto Nazionale della Previdenza Sociale). INPS, by citing message No. 369/2018, noted that, in such a case, in order to be eligible for the Napsi allowance, the employee must prove the just cause of the resignation and, therefore, that the transfer was not supported by technical, organisational and production reasons.
In upholding the worker’s appeal, the Court of Turin disregarded INPS’s practice also in light of the reference legislation, i.e. Italian Legislative Decree No. 22/2015.
In fact, in the Court’s view, the fundamental requirement for access to the Naspi treatment (in addition to employment and contributions) is the involuntary loss of employment. According to the judges, in order to assess whether the worker has ‘involuntarily lost his/her job’, it is necessary to ascertain whether the decision to resign is the result of a spontaneous and voluntary decision by the worker or induced by significant changes in working conditions resulting from the transfer to another location imposed by the employer.
According to INPS, this requirement is deemed to be met when there is a mutual termination of the employment relationship resulting from the worker’s refusal to transfer to another office of the same company that is more than 50 km away from the worker’s residence or can be reached on average in more than 80 minutes by public transport. On the other hand, a resignation that the worker claims took place for just cause following a transfer to another company location is eligible for the Naspi allowance, provided that the transfer is not supported by ‘proven technical, organisational and production reasons’ provided for in Article 2103 of the Italian Civil Code. Therefore, in the event of resignation, the worker will be able to access the Naspi only if he accompanies the relevant application with documentation (such as a declaration in lieu of affidavit pursuant to Articles 38 and 47 of Italian Presidential Decree No. 445/2000) showing at least his/her willingness to defend himself in court against the employer’s unlawful conduct (enclosing letters of summons, claims, complaints, writs of summons, urgent applications pursuant to Article 700 of the Italian Code of Civil Procedure, as well as any other suitable document), undertaking to notify the outcome of the judicial or out-of-court dispute.
Based on the foregoing, therefore, the lower court judge found that the same institution, in guaranteeing the Naspi treatment in the case of mutual termination, implicitly confirms that the transfer to another location 50 km away from the usual location or within 80 minutes by public transport entails a significant change in working conditions.
Therefore, the worker’s decision to resign after having undergone a transfer of that nature, irrespective of the lawfulness or otherwise of the employer’s organisational choice, must be considered to be an involuntary choice of the worker that led to the decision to resign and, therefore, entailed an ‘involuntary loss’ of employment.
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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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