With circular message No. 6 of 27 March 2025, the Ministry of Labour and Social Policies provided its own guidance regarding the correct application of the recently introduced rules on termination of the employment relationship through conclusive conduct.
From 12 January 2025, art. 26(7-bis) of Legislative Decree No. 151/2015, introduced by art. 19 of Law No. 203/2024, provides that an existing subordinate employment relationship shall be deemed terminated at the employee’s initiative in cases where the employee has extended their absence from work beyond:
- the period provided for under the applicable national collective bargaining agreement (NCBA), or
- the fifteenth day, where the applicable NCBA contains no specific provisions on the matter.
Where the employer intends to make use of this legal mechanism to terminate the existing employment relationship, they are required to notify the territorially competent office of the National Labour Inspectorate (INL) of the employee’s absence. The INL may in turn carry out an assessment of the accuracy and validity of the notification received.
Even if the competent INL office does not conduct such verification, the employment relationship shall nonetheless be deemed terminated at the employee’s initiative, and art. 26(1) of Legislative Decree No. 151/2015, referred to above, shall not apply.
That provision states that an absence exceeding fifteen days does not result in termination of the employment relationship at the employee’s initiative if the employee can prove that the failure to notify the employer of the reasons justifying the absence is due to force majeure or to circumstances attributable to the employer.
Concerning the duration of the absence, the Ministry clarified that the fifteen-day period — to be understood as calendar days, unless otherwise provided by the applicable collective bargaining agreement — constitutes the minimum statutory period after which the employer may notify the INL.
This notification, which may therefore be made from the sixteenth day of the employee’s absence, also serves as the dies a quo for the calculation of the five-day period within which the mandatory notice of termination must be submitted using the UNILAV form.
As previously mentioned, art. 26(7-bis) of Legislative Decree No. 151/2015 provides that the duration of unjustified absence that gives rise to termination of the employment relationship may be otherwise established by the applicable NCBA. Given the general principle whereby collective bargaining autonomy may only derogate from statutory provisions in favour of the employee, the Ministry takes the view that such alternative duration set out in the NCBA shall apply only where it exceeds the statutory minimum.
Where the applicable NCBA already regulates the case in which extended unjustified absence — even of less than fifteen days — results in dismissal for just cause or justified subjective reason, the employer, in order to proceed with the termination of the employment relationship, is required to initiate the guarantee procedure provided for under art. 7 of Law No. 300/1970, whereby the employer must:
- issue a formal disciplinary charge to the employee,
- impose the serious disciplinary measure — such as dismissal — after five days have passed since the written notification of the charge, provided that the employee has not submitted a written statement of defence.
In this regard, the Ministry has also clarified that termination of the employment relationship does not automatically result from the unjustified absence but occurs only where the employer decides to assert the presumed intention of the employee to resign. Therefore, the Ministry considers that notification of the employee’s unjustified absence, where it extends beyond the prescribed time limits, constitutes a burden on the employer intending to terminate the employment relationship.
To enable the INL to carry out the necessary checks on the accuracy of the notification, the employer must provide the Inspectorate with the contact details made available by the employee.
In addition, in order to ensure the employee’s right of defence under art. 24 of the Constitution, the employer is also required to simultaneously send the same notification to the employee concerned.
Where the employee submits a resignation for just cause via the Ministry’s online platform, this procedure renders ineffective the termination process for conclusive conduct initiated by the employer.
Termination of the employment relationship takes effect from the date indicated in the UNILAV form, which in any case cannot be earlier than the date of the employer’s notification of the employee’s absence to the INL.
Concerning salary and social contribution, it is specified that the employer:
- is not required to pay salary or related contribution for the period of the employee’s unjustified absence,
- withhold the payment in lieu of notice from the final settlement, as a consequence of termination of employment.
The employment relationship cannot be terminated in case:
- INL verifies that the employer’s notification of the employee’s absence is untrue, in which case the employer may be held liable, including under criminal law,
- the employee proves either the impossibility of communicating the reasons for the absence to the employer, or that they did in fact provide such communication.
The provision set out in art. 26(7-bis) of Legislative Decree No. 151/2015 concerning resignations by conclusive conduct does not apply in cases requiring mandatory validation of consensual termination and resignations submitted by: i) a pregnant employee, and ii) a working mother, or working father, during the first three years of the child’s life or of the placement of an adopted or foster child.
We remain available for any further clarification.