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How to defend yourself against dismissal

Published in: Employment law
by Antonella Marmo
Home > How to defend yourself against dismissal

A worker who has been fired and wants to assert his or her case should know that he or she can defend himself or herself, but must pay attention to the terms of appeal. These deadlines are short and strict.
In this article:

Dismissal and the requirement for written reasons

Individual dismissal is the unilateral act by which employer chooses to terminate the employment relationship.

In order to protect the employee, the legislator has provided the employee with the opportunity to know the reasons behind the employer’s termination (so-called dismissal) so that he/she can examine the merits of this decision and possibly challenge its legitimacy.

In the event that the dismissal letter does not specify what are the reasons for it, the dismissal is, by Law, ineffective.

The requirement for contextual justification of dismissal

The employer cannot notify the reason after the dismissal letter: the reason must be contextual (Art. 1, Par. 37 of the Italian Fornero Law).

Along with being in writing, the reasons given for dismissal must be consistent with a just cause or objective or subjective justification in order to be valid. We have already addressed this in a dedicated article (Letter of dismissal? What to do to protect oneself).

Now, let’s see what terms must be met.

The time limit to be met for an extrajudicial appeal

Upon reviewing the employer’s reasons for dismissal, the employee should be aware that he or she has only 60 days from the date of receipt of the dismissal letter to extrajudicially challenge the dismissal.

This deadline is critical because if not met, the worker loses the ability to assert any subsequent judicial protection against his or her employer.

The challenge consists of a letter, usually written with the assistance of an experienced lawyer, in which the employee challenges the validity of the dismissal. Although the law does not require particular wording, it is important that this challenge clearly and pointedly states the intention to oppose the dismissal.

How to avoid ending up in Court

A labor lawyer is usually hired to appeal the dismissal.

Following consultation with the client and after gathering all the useful elements to assess the situation, the lawyer may also take the relevant measures (to be included in the appeal) to help the worker settle the dispute without necessarily having to assert his or her case in court.

The settlement agreement is an instrument that closes a dispute between the worker and the employer, avoiding its further judicial continuation. A conciliatory agreement is indeed whenever the parties resolve the dispute “amicably.”

In order to be effective, an agreement with the worker must be signed at special facilities such as the territorial directorate of labor or trade unions (the lawyer will take care of such formalities).

The importance of working with an experienced lawyer

Following dismissal, it is crucial to tell the relevant facts to an experienced lawyer.

In order to settle with the employer, so as to avoid the cost and length of litigation, the lawyer needs to emphasize in the out-of-court phase what the worker’s reasons are and the risks to the employer’s side if it persists in not complying.

Collaboration between attorney and employee and the sharing of relevant information is crucial in the strategy adopted. Still, the worker is always the protagonist: the worker must be informed by his or her lawyer of what the pros and cons of litigation are and what results he or she can likely expect to obtain.

If the outcome of the negotiations is favorable, the employer who does not want to risk losing the case in court agrees to pay a sum in compensation and a contribution to the legal costs incurred by the worker. In addition, as a matter of practice, the “administrative” costs for the protected settlement are borne by the employer.

What does "protected venue conciliation" (conciliazione in sede protetta) mean?

In order for the agreement between employee and employer to be immediately effective and non-appealable, it must necessarily be signed in a so-called “protected venue”, meaning that it is suitable to protect the genuineness and spontaneity of the employee’s consent. In order to make the conciliatory agreement valid, the lawyer agrees to sign it before the trade unions or the territorial labor directorate.

In labor law the worker, who has always been regarded as a “weak” party to the employment relationship, is protected through this procedure.

So much so that simple settlement agreements between the parties (not signed in the “protected venue”), precisely because they could be considered as agreements imposed by the employer, are not considered valid and are appealable under Article 2113 of the Italian Civil Code.

Signing an agreement in the “protected venue” is thus all to the advantage of the employee, who is better protected and who then has at his or her disposal a record that has immediate enforcement value.

The time limit for taking legal action

Should the parties have failed to reach an agreement in the meantime, the worker represented by his or her lawyer may take legal action.

From the date of the extrajudicial challenge of the dismissal (which we discussed above), the employee may bring an appeal against the dismissal in court within the mandatory period of 180 days, specifically before the relevant labor court.

Although the employee is forced to engage in court litigation, the legislature always tends to protect the employee. At the first hearing, the judge must conduct free questioning of the parties and conciliation will be attempted again.

This means that the judge, even at the first hearing, will advocate an eventual agreement of the parties, so much so that in case of failure to reach an agreement subsequent to a conciliatory proposal by one of the parties or the judge, the judge may take this into account in decision-making, including with regard to the allocation of litigation costs.

The burden of proof (in court) on the reasons for dismissal

Should no agreement be reached, the dispute will proceed in the usual way. Only at the end of the trial, by judgment, will the judge rule on the legitimacy or illegitimacy of the dismissal.

In order to protect the weaker party, the employer will again have to prove the legitimacy of the dismissal and the soundness of the reasons given for it.

The legal tools to protect the employee are many, but only with the help of an experienced lawyer is it possible to stand up for oneself. The defense strategy must be set up correctly from the very beginning, taking the right steps and adhering to the above deadlines.

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Publication date: 20 January 2023

Antonella Marmo

Avvocato dello studio legale Canella Camaiora, iscritta all’Ordine di Milano, si occupa di Diritto Commerciale e del Lavoro.
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