Dear Customers,
this month we delve into the subject of resignation by conclusive facts; an issue that has aroused lively interest and for which the Ministry of Labour has provided clarifications with a recent Circular, number 6 of 27.03.2025, regulating art. 19 of Law no. 203/2024.
The Circular, in fact, summarises the main interventions of the new Labour Law, providing operational indications for the concrete application of the new provisions.
Among the most relevant new features, Article 19 of the Law, amends Article 26 of Legislative Decree No. 151/2015 by introducing paragraph 7-bis according to which, in the event of unjustified absence of the worker protracted beyond the term established by the collective agreement or, in the absence, beyond 15 days, the employer may consider the relationship terminated by the worker’s will.
The employer, therefore, may consider prolonged and unmotivated absence as an implicit manifestation of the employee’s wish to terminate the relationship. This termination, however, does not operate automatically: the employer must take action by reporting the event to the Labour Inspectorate and the Inspectorate will check the veracity of the communication.
As regards the duration of absence, it is considered that, in the absence of a specific provision in the applicable collective labour agreement, it must be longer than fifteen days. Moreover, only calendar days should be counted, unless the collective labour agreement applicable to the employment relationship provides otherwise.
It follows that, from the sixteenth day of absence, the employer may proceed with the relevant communication to the territorial labour inspectorate and there is nothing to prevent this communication from being formalised at a later date.
The communication also acts as the dies a quo for sending the compulsory notification of termination of employment via the UNILAV form (5 days after the event that caused the termination of employment).
If, on the other hand, the applicable CCNL provides for a term other than that contemplated by the rule in question, if it is longer than the legal term, it will certainly apply. If, on the other hand, a shorter term is envisaged, reference will be made to the statutory minimum term.
Finally, several collective agreements introduce an unjustified prolonged absence – of varying duration, even shorter than the fifteen days provided for in the provision under review – with disciplinary consequences, allowing the employer to proceed with dismissal for just cause or for justified subjective reason.
In such cases, the guarantee procedure provided for in the Workers’ Statute (Law No. 300 of 20 May 1970) will be activated.
In fact, it is to be considered that where the employer intends to terminate the employment relationship upon the occurrence of the condition provided for by the contract (absence for the duration determined by the same CCNL), he must follow the path outlined by the CCNL – entirely alternative to that provided for by Article 19 in comment – and thus activate the procedure under Article 7 of Law No. 300/1970.
This is without prejudice to the right of collective bargaining agreements to expressly regulate the case of resignation by concluding facts, establishing a different – and more favourable – term than the one set by the rule to bring about the termination effect of the relationship due to unjustified absence.
On this point, it seems useful to clarify that, in any event, the telematic termination procedure following resignation by concluding facts, initiated by the employer, is rendered ineffective if the employer subsequently receives notification of the telematic resignation from the employee.
Therefore, even the submission of resignation for just cause through the telematic system by the employee – without prejudice to the need to discharge the relative burden of proof in the manner described in INPS circular no. 163 of 20.10.2003 – prevails over the termination procedure by concluding facts initiated by the employer.
In order to allow the Inspectorate to carry out its checks on the veracity of the employer’s communication of unjustified absence, the employer must indicate all the contacts and contact details provided by the employee and forward the communication sent to the territorial Inspectorate, also to the employee, to enable him to effectively exercise the right of defence provided for by Article 24 of the Constitution.
The termination of the relationship will take effect from the date shown on the UNILAV form, it being understood that the employer is not obliged, for the period of the employee’s unjustified absence, to pay wages and related contributions.
With reference to the consequences of such termination, it is considered that the employer may withhold from the severance pay to be paid to the employee, the contractually established indemnity for lack of notice.
The termination effect of the relationship may be avoided if the employee proves “the impossibility, due to force majeure or for reasons attributable to the employer, of communicating the reasons justifying his absence”.
The onus is therefore on the employee to prove the impossibility of communicating the reasons for absence to the employer or the fact that he did so anyway. It should also be noted that the employer – following the inspections – could be held liable, even criminally, for false communications made to the territorial inspectorate.
Lastly, it should be clarified that – on the basis of a systematic reading of the maternity and paternity protection legislation – the provision in question is not applicable in the cases provided for by Article 55 of Legislative Decree No. 151/2001, which provides for the mandatory validation (with suspensive effect of effectiveness) of consensual termination of the employment relationship and resignations submitted by the employee:
- worker during the period of pregnancy,
- working mother (or working father) during the first three years of the child’s life or during the first three years of the child’s placement with an adopted or foster child, or, in the case of an intercountry adoption, during the first three years from the communication of the proposal to meet the adoptive child or of the communication of the invitation to go abroad to receive the matching proposal.
The legislation, which has a special character, protects more strictly those categories of workers who are in a vulnerable situation.
We remain at your disposal for any further information and to assist you in the interpretation and correct application of the new provisions.