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Italie - Voies de recours et procédure contentieuse en cas de litiges individuels


Voies de recours et procédure contentieuse en cas de litiges individuels - Italie - 2017    

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Compensation pour licenciement injustifié - montant librement déterminé par la cour: Non

Compensation pour licenciement injustifié - limites légales (plafond en mois ou methode de calcul définie) :

Remarks:
  • Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
    1) For employers with more than 15 employees (or five in the agricultural sector) in one production unit, or more than one in the same municipality, and employers employing more than 60 workers wherever located.

    See: art. 18 Act 300/1970 (workers' statute) as amended by Art 1.42 of Law 92/2012. Before this amendment, mandatory reinstatement of the dismissed employee and payment of damages for the period between the dismissal and the reinstatement but not less than five months' pay applied to all cases of unfair dismissal issued by employers with more than 15 employees (or five in the agricultural sector) in one production work unit, or more than one in the same municipality, and employers employing more than 60 workers wherever located.

    In case of unfair dismissal (lack of justification, discriminatory, irregular procedures):
    Discriminatory dismissal or based on prohibited grounds - the applicable sanctions: Mandatory reinstatement of the dismissed employee and payment of damages for the period between dismissal and the reinstatement but not less than five months' pay. (Art. 18.1 of WS 300/70 as amended by art. 1.42b of the Act 82/2912)
    Unlawful disciplinary dismissals: because of the lack of the elements which characterize the employers' claim (INSUSSISTENZA DEL FATTO CONTESTATO) or because the sanction applied could have been other than dismissal - the applicable sanctions: the court will order the employer to pay the employee an indemnity of not more than 12 months' salary + reinstatement. (Art. 18.4 of WS 300/70 as amended by art. 1.42b of the Act 82/2912)
    Unlawful disciplinary dismissals because the judge finds that "other" elements which constitute disciplinary dismissal are lacking - the applicable sanctions: compensation 12 to 24 months salary. (Art. 18.5 of the WS 300/70 as amended by art. 1.42b of the Act 82/2912)
    Because the procedure has been violated (*violation of the art. 2.2 of the Act 604/1966, of the art. 7 of the Act 604/1966; and art. 7 Statuto Lavoro)- the applicable sanctions: the judge confirms the termination of employment and awards compensation from 6 to 12 months salary, unless the judge if requested by the worker, verifies that the termination is not justified in which case art. 18.1 or 18.4 or 18.5 or 18.7 workers as amended by art. 1.42b of the Act 82/2912 are applied. (art. 18.6 of the WS 300/70 as amended by art. 1.42b of the Act 82/2912)
    Unlawful economical dismissal - the applicable sanctions: If the reason for the dismissal is manifestly in-existent, the judge can apply the sanction provided for in article 18.4 WS as amended b art. 1.42b of the Act 82/2912. In other unlawful economical dismissal cases the judge can apply the sanction imposed by the art. 18.5 as amended by by art. 1.42b of the Act 82/2912. (Art. 18.7 of the WS 300/70 as amended by art. 1.42b of the Act 82/2912)
    In the case of an unjustified dismissal because of physical or mental reasons related to the worker or because of the violation of the art. 2010.2 of the Civil Code the judge will apply the sanction provided for in the art. 18.4 WS 300/70 as amended by art. 1.42b of the Act 82/2912)

    2) For establishments with up to 15 employees (or 5 in the agricultural sector):
    * Rehiring (new contract) or if refused by the employer, compensation ranging from 2,5 to six months' pay (depending on job tenure and firm size), up to 10 months pay for more than 10 years of service, and up to 14 months for more than 20 years of service. However, when the dismissal is held to be discriminatory or however based on prohibited grounds or retaliatory or in any other case in which the law provides the dismissal to be held null and void mandatory reinstatement of the dismissed employee and payment of damages for the period between the dismissal and the reinstatement but not less than five months' pay would apply.
    See: art. 8 Act 604/1966.



Possibilité de réintégration dans l'emploi: Oui

Remarks:
  • Depending on the number of employees and/or the nature of irregularity affecting the dismissal as previously mentioned reinstatement can be either mandatory or optional: art. 18 Act 300/1970 Act (workers' statute) and art. 8 Act 604/1966.

Conciliation préalable obligatoire: Oui

Remarks:
  • Conciliation is optional.

    Since 2012, pursuant to Art.7, Law 604/1966 as amended by Art. 1.40 of Act 92/2012,, employers with more than 15 employees (or five in the agricultural sector) in one production work unit, or more than one in the same municipality, and employers employing more than 60 workers wherever located, have to notify public bodies (Direzione Territoriale del Lavoro) when a dismissal for justified objective reason is contemplated, in order to attempt an amicable settlement between the parties.

    Art. 7.4 of decree 76/2013 specified that this does not apply to dismissal connected to absence for work because of illness or injury or to other similar cases.

    Conciliation is also promoted in the art.6.1 of the Legislative decree 23/2015. This decree is applicable to the workers who are hired with an employment contract of indefinite duration. If the worker opts for the conciliation the employer may offer him/her within 60 days from the dismissal an amount equal to one month’s salary for each year of service, and a minimum of 2 to a maximum of 18 months salaries, not subject to taxation.

Courts ou tribunaux compétents : tribunal du travail

Remarks:
  • Art. 413 Civil Procedure Code.
    The labour court "giudice del lavoro" is integrated into the organization of the general civil court system, but follow special procedures.

Règlement des litiges individuels par arbitrage: Oui

Remarks:
  • Art. 412-ter Civil Procedure Code: arbitration must be foreseen by a collective agreement.

Durée de la procédure: 23 mois

Remarks:
  • As of 2004, for first instance cases
    (26 months for appeal cases)
    Source: http://www.corteappellocatania.it/formazione/051007/durata.pdf, p. 3
    citing the 2006 report of the European Commission for the Efficiency of Justice : http://www.coe.int/t/dghl/cooperation/cepej/default_en.asp)

    Art. 6 of the act 604 /1966 as amended by the art. 32.1 of the Act 183/2010 as amended by the art. 1.38 of the Act 82/2012, states that any type of dismissal must be claimed from the employer within 60 (*this however does not have to be respected as you can go to the judge directly) days from the moment of the notification. In this case 60 days is a deadline for giving a notification to the employer that you would like to challenge his/hers decision on termination. From the moment the employer is notified, a new deadline starts within which a worker has to go to the judge (180 days deadline). Before 2012 reform the 180 days deadline was 270 days deadline.