New law sets stricter timeframe for challenges to dismissals

On November 24 2010 Law 183/2010 entered into force, amending certain key aspects of the law on challenges to dismissals and the actions that employers can take in response. Among other things, it also introduces new provisions on the penalties that a court may impose if it finds a fixed-term employment contract to be unlawful. The main changes are as follows:

• In order to retain the right to contest the lawfulness of his or her dismissal, an employee must challenge the dismissal within 60 days. He or she has 270 days from the date of dismissal in which to bring proceedings before the relevant court or to submit the claim to conciliation or arbitration. Previously, employees had 60 days from communication of the dismissal (or communication of the grounds for dismissal) in which to contest the decision, whether in or out of court.(1) However, having done so, they then had five years from such communication in which to challenge their dismissal.
• The new timeframe for contesting dismissal also applies to challenges in respect of:
  • the validity of an employee's transfer;
  • the assignment of an employment contract following a transfer of business;
  • recognition of the subordinate nature of an employment relationship (eg, in the case of contract work or ad hoc assignment of staff); and
  • the right of a service user to withdraw from an agreement on project or contract work.
• If an employee successfully challenges an invalid fixed-term contract, he or she is entitled to receive between 2.5 and 12 times his or her monthly salary and the contract automatically becomes an open-ended contract. The sum awarded may be reduced by half where an applicable national collective labour agreement or a company agreement (if negotiated and agreed at national level) provides for employees on fixed-term contracts and at specific grades to be offered open-ended contracts.
• The new law seeks to encourage settlement through the promotion of arbitration and conciliation in administrative proceedings.
• The law allows administrative authorities to certify facts and circumstances which are deemed to constitute just cause or a justified reason for dismissal, and which a judge must consider as such in the event of subsequent litigation. Thus, judicial assessment of the circumstances of a dismissal will not necessarily be based on the employer's arguments relating to technical, organisational or productive factors.
• The new law mandates the government to issue legislative decrees on employment-related incentives and services, women in the workplace and equal opportunities, study leave and apprenticeships.

For further information on this topic please contact Andrea Stanchi at Stanchi Studio Legale by telephone (+39 02 546 9522), fax (+39 02 551 91641) or email (a.stanchi@stanchilaw.it).

Endnotes

(1) Law 604/66.