New rules for challenging dismissals?
An important reform of the Labour Proceeding Code is under final discussion by the Legislator. According to the proposed reform, the procedures and deadline for challenging individual dismissals would be amended.
Currently, a dismissal may be challenged by an employee, within 60 days of receipt of the decision, via a signed written communication.
The existing legislation also states that, before filing the case in Court, the employee is bound to request a formal conciliation attempt from the Conciliation Commission established at the Provincial Labour Office. If the attempt fails, or if 60 days from the date of the request passes, the employee is permitted to file the relevant lawsuit.
According to the proposed reform, the deadline for challenging a dismissal will be increased from 60 to 120 days from the receipt of the dismissal letter. It will also be possible to challenge the termination solely by filing a claim in Court, without the requirement for a prior conciliation attempt. The new deadline of 120 days will apply to all kinds of termination of employment, including: nullity of the dismissal (e.g. dismissals issued during the employee's pregnancy); claims concerning termination that assumes the resolution of preliminary issues such as the transition of a freelance worker into an employee; alleged unlawful termination of fixed-term employment relationships; and termina tion of "work-on-project" consultancy.
It is worth noting that, although not expressly mentioned, the rule will also apply to collective dismissals; terminations as result of a collective redundancy procedures are in effect individual dismissals and consequently subject to the same rules.
Effect on employers
Although the aim of the reform seems to be the resolution of long-lasting contention and a simplification of the rules governing the dismissals, according to the vast majority of commentators, the result could be the opposite. It is in fact foreseen that the Courts could be overwhelmed by a massive number of claims, including those that, under the existing rules, are settled by the parties before coming to the attention of the Court. This could generate extra contentious work for employers, which could result in a rising number of Court cases.