Letter of Dismissal? What to do to protect yourself.

Dismissal is an upsetting and bewildering event. Mostly due to the fact that, in addition to the disappointment of losing one’s job, there are direct consequences on the person’s income. In the event of wrongful dismissal, it is necessary to know the most appropriate way of protecting oneself and asserting one’s rights. It is not always easy for the employee to understand whether the dismissal is “regular” or not. In this article:

1. When can dismissal be considered unlawful?
2. Dismissal for justified objective reason
3. Dismissal for justified subjective reason
4. The “just cause” for dismissal
5. What steps should be taken after receiving the dismissal letter?

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1. When can dismissal be considered unlawful?

The law provides that the employer may only dismiss the employee in certain well-defined cases. The employment law lawyer has to analyse the dismissal to see whether it falls within one of the cases provided for by law, in order to assess its legitimacy.

The law, to protect the employee, requires the employer to justify the dismissal with valid reasons. The justifications identified by the law may be:

• objective;
• subjective.

Then there is the case of dismissal for just cause. In addition, it is good to know that an unlawful dismissal must be challenged within a specific time limit, as we will discuss in a moment.

2. Dismissal for justified objective reason

Dismissal for objective justification concerns reasons pertaining to the company as a whole, its productive activity, the organisation of work and its smooth operation. This means that dismissal is only legitimate if the employer is really facing an economic or production crisis. For instance, the company must be facing an economic stalemate and is forced to take drastic decisions. Sometimes in order to cut costs it is also necessary to reduce staff.

Sometimes, the crisis is merely a pretext… If the employee has a well-grounded suspicion that the reasons are not really structural, he may challenge the dismissal.  It will then be up to the employer to prove the validity of the reasons and, consequently, the legitimacy of the choice made. Dismissal must always be an ultima ratio due to the impossibility of saving the worker, for example, by placing him elsewhere. Here are some examples of dismissal for objective reasons:

• in the event of the suppression of the position or department to which the employee is attached;
• closure of the business;
• downsizing of the business activity, etc.

3. Dismissal for justified subjective reason

A subjective justified reason exists when the company terminates the employment relationship for causes related to the employee’s conduct. Such conduct is not so serious as to legitimise a summary dismissal. The law guarantees the employee the opportunity to justify his behaviour. Here is what happens.

When the employer ascertains inappropriate behaviour (not in accordance with the employment contract or company regulations), it initiates disciplinary proceedings against the employee. The employer notifies the employee of the inappropriate conduct by means of a letter. The employee normally has five days to reply in writing or to request a verbal confrontation. 

Only after receiving and evaluating the employee’s justifications can the employer decide whether to impose the sanction.

Dismissal can only be imposed in the case of repeated or very serious conduct, otherwise a milder sanction will be applied (as provided for in the collective agreement). Examples of subjective justifications are:

• failure to comply with directives (requesting overtime or travel);
• for negligent behaviour;
• in the case of poor performance.

The employer must give reasonable notice of dismissal (the terms of which are established by the various CCNLs).  During the notice period, the employee may continue working, receiving his salary until it expires. When the notice period is not observed and, therefore, the employment relationship terminates immediately, the employee is still entitled to the notice allowance.

4. The “fair cause” for dismissal

Some situations may be so severe that they do not allow the employment relationship to continue in any way. The employee’s behaviour is considered so extreme that the employer, no longer trusting the employee, immediately terminates the collaboration. This is why it is called dismissal without notice (summary dismissal)… In dismissal for just cause, there is no notice period. Some examples of this type of termination relate to behaviour on the part of the employee that is deemed inappropriate and non-compliant with company regulations and/or the law:

• performance of work for a competitor company and disclosure of business secrets;
• acts of insubordination, physical violence, verbal aggression towards superiors;
• theft in the company or withdrawals from the till;
• criminal convictions, which may damage the company’s image.
• unjustified abandonment of the workplace;
• false illness and other unjustified absences.

5. What steps should be taken after receiving the dismissal letter?

Once the requirements for unlawful dismissal have been established, the first thing to do is to challenge the dismissal. The Italian law states that the dismissal should initially be challenged in writing, under penalty of forfeiture, within 60 days of its receipt. The letter of appeal must be sent to the employer by registered letter with acknowledgement of receipt or by certified electronic mail and must be signed by the employee. When challenging the dismissal, the employee normally appoints a lawyer in order to best represent his reasons, highlighting the illegitimacy of the measure imposed.

In the event that the out-of-court letter of challenge does not lead to an agreement, the employee must file legal proceedings within one hundred and eighty days, counting from the day of the out-of-court challenge. To sum up, the first thing to do in the event of a disciplinary dispute or summary dismissal is to run to the lawyer to avoid wasting precious time.