Resignation by conclusive facts: employment is terminated even without an electronic procedure (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, July 2022)

26 July 2022

In its 26 May 2022 ruling, The Court of Udine outlined a resignation by conclusive facts case and the “electronic resignation” procedure under Article 26 of Legislative Decree no. 151/2015.

The case involved a female worker who took time off work for a prolonged period, from 14 December 2019 and for more than six months afterwards, without any justification. The employer issued the worker with a letter sent on 12 June 2020 formally inviting her to resign. When the worker’s failed to respond, the mandatory “Unilav” employment termination notice due to resignation was sent to the Employment Centre on 8 July.

This termination was contested by the worker, since she had never submitted her resignation, or the electronic validation required by law. At the same time, she declared herself willing to return to work, subject to reimbursement of accrued remuneration and the relevant social security contributions due for the months that had elapsed from the time of her absence until her reinstatement.

The worker justified her prolonged absence as down to “psychophysical prostration” due to the assignment by the employer of “burdensome” tasks of food delivery in certain municipalities.

The employer objected stating that the employment relationship had been terminated by the sole will of the worker, due to conclusive facts consisting of unjustified absence for more than six months. This was corroborated by the assertions expressed by the worker to her unit manager, consisting of her intention to no longer return to work following the holidays, which began on 9 December 2020, because of her dissatisfaction with her work.

According to the employer, the worker’s stated intention was to provoke the employer’s termination and obtain the Naspi benefit.

The court found that it was uncontroversial that the worker had voluntarily absented herself from work continuously from 14 December 2019, without providing any justification and without replying to the employer’s letters for more than six months.

Despite the 31 December 2019 disciplinary notice, in which the worker was charged with unjustified absence since 14 December, and the 12 June 2020 letter, in which the employment termination was acknowledged “as a matter of fact ” and the worker was invited to “resign under the applicable electronic procedure,” the employee remained silent, confirming that she had not voluntarily responded to those notices due to a lack of interest.

The worker urged her unit manager not to assign her any shifts over the Christmas period, as she “did not think she would return” and expected the company, to “dismiss her.”

It was clear to the judge that the worker “wanted to terminate her employment with the company […] on her own initiative, having made this intention […] clear to her manager and not having returned to work after the holidays.” Besides the validity of the employee’s grounds, defined as “late and rather generic”, the court observed how “these reasons were a clear and further sign of the plaintiff’s intention […] to terminate her employment.”

Despite the legislative change that took place in 2015 on resignation and consensual employment termination, the court further observed how the employment contract termination by mutual consent and especially resignation was based on Articles 2118 and 2119 of the Italian Civil Code, which lay down the general rule of the worker’s right of “free withdrawal”, subject to notice. This free withdrawal right was unchanged, so the ruling shows that “resignations may continue to be valid, at least in specific cases, even as a result of prerequisites other than the electronic formalisation imposed by the 2015 amendment.”

The court highlighted how the Delegated Law no. 183/2014 included “simplified methods to ensure an exact date and the authenticity of the worker’s will to resign or consensually terminate the employment relationship. This ensures the certainty of the relationship termination for cases of “conduct implying an intent” by the worker […]”.

Such an aside was unimplemented in Legislative Decree no. 151/2015, the content of which seems to be unenforceable in cases of resignation by conclusive facts.

It was deemed unreasonable to consider that the employment could be terminated through a dismissal for just cause, if the worker did not resign due to inertia. This would affect the “free exercise of entrepreneurial independence” under Art. 41 of the Constitution, in terms of risks (justification in a hypothetical trial) and costs (Naspi contribution). The consequence would be an “unjust loss of resources” to be destined to those workers who are entitled to Naspi because they are involuntarily unemployed. Considering the above, the worker’s claim was rejected, and the employment relationship was definitively terminated.

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