ITALY Law and Practice Contributed by: Angelo Zambelli, Barbara Grasselli and Alberto Testi, Zambelli & Partners
There is no legal prohibition against dismissing an employee representative. Under Article 18 of the Workers’ Statute, if a union representative initi - ates a lawsuit to contest an employee’s dismissal, a labour court may, upon the joint request of both the dismissed employee and their union, order the employee’s immediate reinstatement on a precaution - ary basis. This can occur before a final decision is reached if the court finds that the evidence presented by the employer to justify the dismissal is irrelevant or insufficient. The applicable NCBA may provide further protection (eg, the NCBA for the metal-mechanic sec - tor sets out that the employee representative cannot be dismissed without the authorisation of the union to which they belong). Italian labour law requires the termination of the employment contract to be justified based on spe - cific reasons: • just cause – in case of gross misconduct by the employee, which does not allow the continuation of the employment relationship even temporarily; • subjective justified reasons – whenever the employee breaches a contractual obligation, but the behaviour is not serious enough to warrant dismissal for just cause; and • objective justified reasons – which concern techni - cal, production-related and organisational reasons. Null and void dismissal In Italy, a dismissal is considered null and void in the following circumstances: • if an employer dismisses an employee verbally; • if the dismissal is motivated by discrimination or retaliation (eg, for an employee exercising their legal rights, such as reporting workplace safety concerns); • if an employee is dismissed from the beginning of their pregnancy until one year after their child’s birth; and 8. Disputes 8.1 Wrongful Dismissal Individual Dismissals Grounds for termination
• if an employee is dismissed because they request - ed parental leave or got married. In the above cases, the remedies are the reinstate - ment of the employee plus the payment of back pay from the date of dismissal to reinstatement, with a minimum of five months’ salary. In all other cases, the applicable sanctions for unlaw - ful dismissal depend on the reasons that lead to the termination of employment, the employee’s qualifica - tion and date of hiring and the company’s size, as follows. Unlawful dismissals for a just cause or subjective justified reasons (disciplinary dismissals) Employees hired before 7 March 2015: • small companies employing up to 15 employees: (a) employees may be entitled to be re-hired with a new employment contract, or to receive an indemnity ranging between 2.5 and 6 months’ salary (this indemnity can be increased to up to ten months of salary for an employee with more than ten years of service and up to 14 months of salary as far as employees with twenty or more years of service are concerned, if the company has up to 60 employees in the whole Italian territory and up to 15 employees in a single business unit or more business units within the same municipality (“ Comune ”)); • large companies employing more than 15 employ - ees: (a) if the “justified subjective reason” or “just cause” is found to be invalid because: (i) the alleged behaviour did not occur; or (ii) a less severe disciplinary action could have been taken on the basis of the ap - plicable NCBA, the employee may be entitled to reinstatement and an indemnity up to 12 months’ salary, plus social security contributions. In all other cases, the employee is enti - tled to the payment of an allowance ranging between 12 and 24 months’ salary.
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