The new law on resignations
Law no. 188 of 8 November 2007 has come into effect, setting forth new provisions regarding voluntary resignations by employees and consultants.
The provision is applicable in respect of all employers.
Article 1, Paragraph 1 of the law provides that a letter containing voluntary resignations, or termination of the working relationship, must be written, both by employees and autonomous collaborators, on standard forms, approved and rendered available by the local Labour Offices, as well as, conditionally to the stipulation of a convention with Ministry of Labour, by the workers’ associations and trade unions.
The new law does not prejudice article 2118 of the Italian Civil Code (“c.c.”), which provides for the obligation to comply with the notice period set forth by the collective agreement applicable to the relationship.
The law makes reference to employment contracts in general, therefore it is applicable to:
the subordinated employment relationships defined by art. 2094 c.c., apart from their features. Obviously, the definition of subordinated employment includes (art. 2095 c.c.) not only blue-collar workers and white-collar employees, but also executives and “quadri”;
all fixed-term contracts, in case of resignations in advance, (e.g. substitution of a worker absent for illness, maternity leave or holidays, or for work to be provided during a short period of time); and
all training contracts.
The wide definition adopted by the Legislator also implies that the binding obligation of the predisposed form for the resignations is applicable to an extensive range of “special” subordinated employment relationships, for example, those present in the artistic sector, in maritime employment, in journalism and among professional sportsmen.
The Legislator has also made reference to self-employed consultancy contracts (so called “coordinated and continuative collaboration”), also those specific to a particular project, to contracts of an occasional nature, and to working contracts stipulated by cooperative companies with their partners/shareholders/associates.
The presentation of resignations not taking place by means of the standard ministerial form, implies that resignation will be null and void, given that a legal “formality” required by law would not be satisfied.
Effect on employers
The above is therefore a very serious consequence, which has significant effects in respect of the employer, who continues to be considered as such, both with regards to the obligation of remuneration as well as regarding the obligation of pension contributions and tax withholding.
Paragraph 3 of article 1 of the new law establishes that the forms shall have to be realised in accordance with certain directives which shall be issued by means of a Decree of the Ministry of Labour within ninety days from the coming into effect of the law, i.e. 22 February 2008.
The forms (paragraph 5) shall also be rendered available on the Ministry of Employment’s website through modalities which the Legislator has left to be determined by the Decree, and which shall have to guarantee certainty as to the identity of the applicant, the protection of personal data and the identification of the issue date.
From the above, it may be argued that the new provisions should not have immediate effect, whereas it should be necessary to wait for the printing of the forms, in compliance with the Ministerial Decree which, hopefully, shall be promptly issued. In any case, in the meantime it would be advisable to enter into mutual termination, rather than unilateral resignations.