The Court of Udine with its ruling no. 106/2020, confirmed that an employer that is forced to dismiss an employee for unjustified absence has the right to withhold from the post-employment benefits due to the same the amount paid to INPS for the purposes of unemployment tax (known as “NASPI ticket”).
Facts of the case
In the specific case a worker orally indicated to the employer’s legal representative his intention to resign due to his father’s health problems and asked to be formally dismissed in order to obtain monthly unemployment benefits, i.e. NASPI.
After being refused, the worker threatened to remain absent from work. Despite this, the company decided to grant him a lengthy period of holiday in order to help his father. Once the holiday period ended the worker did not return to work and did not justify his absence in any way despite repeated requests.
Due to the continuation of the unjustified absence, after having attempted the disciplinary procedure as per art. 7 of Italian Law 300/1970, the company dismissed the worker for just cause. But there is more. The company then also withheld the amount of the dismissal tax due to INPS from the amount owed for post-employment benefits as well as other sums as compensation for damages sustained due to the employee’s failure to perform his job.
The worker submitted an appeal for injunction in order to have the sums withheld returned to him expecting that the unilateral decision to terminate employment would have been made by the employer.
The company objected to the injunction handed down against it so it would be revoked. The worker challenged it asking for rejection of the appeal submitted by the same and, thus confirmation of the decision in question.
The Court’s decision
The Court’s opinion was adequately proven, within the performed inquiry, that the decision to termination employment was taken unilaterally by the worker. He – faced with the company’s refusal to proceed with the requested dismissal – had, deliberately remained absent in order to be dismissed.
Therefore, according to the Court, “the expenses sustained by (editor’s note by the company) to carry out (involuntarily) the decision to withdraw made by the worker can only be borne by him and, specifically, the (editor’s note the worker) shall be required to pay the plaintiff the sums it spent for the purpose of the so-called dismissal ticket. The so-called dismissal ticket is an expense that the (editor’s note the company) had to sustain exclusively because the (editor’s note the worker), instead of resigning, without costs for the company, deliberately placed it in a position of having to terminate the employment relationship”.
In consideration of the above, the Court revoked the injunction issued against the opponent and verified, in terms of what interests us, the existence of credit of the same for the amount of the dismissal ticket, since the withdrawal is attributed to the employee’s omissive conduct.
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The ruling in question (no precedents have been found to date) basically reaches the conclusion whereby the employer, forced to dismiss a worker for unjustified absence, has the right to compensation for the damage sustained and corresponding to the amount of the NASPI ticket paid to INPS.