Case law developments

Resignation due to unjustified absence: rules set by bargaining agreements

According to a recently approved law, if an employee is absent without justification for a period longer than the specific term provided by the applicable collective bargaining agreement or, lacking a specific provision, for more than 15 days, the employment relationship can be deemed to be terminated at the employee's will. As a consequence, the employee would not be entitled to any unemployment benefits.

A local labor court ruled that (i) only unjustified absences taking place from 12 January 2025 onwards can be considered for the purpose of the new law, and (ii) the relevant term to determine whether the employment relationship is to be deemed terminated at the employee's will is the term provided by the collective bargaining agreement for disciplinary relevant unjustified absences, rather than the 15-day period set by statutory law.

Reference to collective bargaining agreement provisions for the validity of a probation clause

For a probation clause to be valid, it is sufficient that the employee's duties are clearly specified, even by referring to the collective bargaining agreement, if the reference is sufficiently detailed. In a recent ruling, the Italian Supreme Court confirmed the lawfulness of the dismissal for failure to pass the probationary period arguing that an employment contract's reference to the duties of contact center and back-office operator and the relevant professional category, as defined by the applicable collective bargaining agreement, was sufficiently detailed, thus making the probation clause valid.

An employee who bullies colleagues may lose promotion

In cases of disciplinary action, an employer may apply the appropriate sanction and consider it in the employee's performance evaluation, thereby affecting promotion opportunities. In a recent case, the Italian Supreme Court upheld both the disciplinary sanction and the resulting performance evaluation of an employee who had engaged in psychological and physical abuse against a colleague. Such behavior was considered a lack of professionalism, thus compromising the employee's career advancement.

Timeliness of disciplinary charges must be assessed in a flexible way

According to Italian case-law, in order for a disciplinary proceeding to be valid (and consequently, for the lawfulness of the relevant disciplinary sanctions), an employer must charge the employee with the disciplinary complaints in a timely manner. Nevertheless, a delay in issuing the disciplinary charge to the employee may only invalidate the disciplinary proceedings to the extent that the delay hinders the employee's right to a proper defense.

A local labor court ruled that, before proceeding with a disciplinary action, an employer must carefully assess all the facts in its possessions, in order to avoid hasty or unfounded accusations. Therefore, in order to determine whether a disciplinary proceeding is timely or not, reference must be made to the moment when the employer acquires real and complete knowledge of the facts to be challenged against the employee.

An employee can be dismissed for unjustified absence if the relevant medical certificate is submitted late

According to the Italian Supreme Court, a disciplinary dismissal is lawful if the employee fails to promptly justify their absence, unless they can prove objective and involuntary reasons that made it impossible to fulfill their obligation to submit the relevant medical certificate in a timely manner. This obligation is any case fulfilled is the relevant medical certificate is submitted by the employee's physician to the employer.