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20 February 2013
On January 16 2013 the labour minister issued Circular 3 concerning Article 7 of Law 604/1966 as amended by Law 92/2012 (ie, the Fornero labour reform; for further details please see "Fornero labour reform at a glance"). The circular aims to deliver practical instructions regarding the mandatory mediation procedure for dismissals for objective justified reason as regulated by Article 7.
The recent reform has introduced important changes regarding dismissal (for further details please see "Fornero labour reform: dismissal"). In particular, dismissal for objective justified reason occurs when:
In these circumstances, a safeguard applies and the employer must reinstate the employee and pay him or her an amount of up to 12 months' salary. Moreover, the employee has the right to have his or her national insurance contributions paid by the employer. In lieu of reinstatement, the employee can opt for an indemnity of 15 months' salary in addition to the damages. In all other cases (ie, dismissal for subjective justified reason or dismissal with no justified cause), the employee must be paid between 12 months' and 24 months' salary.
Article 7, as recently amended, introduced a mandatory mediation procedure for employers that initiate dismissals for objective justified reason, applicable to companies with at least 15 employees. The procedure must be held before the Territorial Ministry of Labour Commission.
The circular includes instructions and clarifications regarding several issues. First, the ministry points out that for the purpose of calculating the company's required minimum number of employees (15 in the same office or municipal territory), the 'regular occupation' of the employees must be taken into account and identified with respect to the six-month period before the dismissal occurred, instead of the dismissal date.
Second, the circular confirms that objective justified reasons for dismissal are at the employer's exclusive discretion. However, the ministry clarified that dismissals occurring after the conclusion of the protected period for illness or injury (by virtue of Article 2110 of the Civil Code) are not considered dismissals with objective justified reason with respect to the required mediation procedure (if the protected term has concluded, the employer may dismiss the employee).
Third, the circular clarifies several points regarding the mediation procedure:
Considering the experience of the past few months, the mediation procedure is a crucial issue in need of clarity. Employers must elaborate in detail on the reasons for the dismissal and the impossibility of reassigning the employee. Moreover, employers should be prepared to defend their declared reasons for the dismissal, and to respond appropriately to the commission's proposal for a settlement. If the mediation procedure is unsuccessful, failure to comply with these steps may be used against the employer in litigation. It is thus advised that employers be assisted by a legal professional when handling dismissals – even from the first written notice, and especially during the mediation procedure and in the company's first few dismissal cases – in order to gain necessary experience with this new system.
For further information on this topic please contact Andrea Stanchi orAnnamaria Pedroni at Stanchi Studio Legale by telephone (+39 02 546 9522), fax (+39 02 551 91641) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org).
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