09/23 2019

Employment in Religious Entities: dismissal

In the article entitled “Employment in religious entities: disciplinary sanctions” we tackled a thorny issue for a number of ecclesiastical organisations: managing employees in situations involving insubordination, negligence, or other serious misconduct by the employee.

In this article, we discuss the highest sanction available under Italian law: dismissal.

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Although often small in size, a Religious Entity (RE) generally has employees.

And, just as is the case in any type of contractual relationship, there can shortcomings by the other party to the employment contract (in this case, to wit, the worker) ranging from minor to serious.

Therefore, one must pay close attention to the labour laws that govern these critical moments in a work relationship. But one must go further: one must distinguish between workers who might be considered “domestic help” (for whom the simpler rules for dismissing domestic workers apply) from those employees who serve in other areas (such as in restaurant/dining or hotel/lodging operations) which are ancillary to the RE’s core operations (and in which case we would have employees analogous to those of a commercial enterprise).

Indeed, there may be situations, whether in the home or within a company, where it becomes necessary to terminate a specific employment contract, and to dismiss the employee.

The reasons prompting such dismissal may lie with the worker (e.g. for not performing well on the job), or with the employer (in commercial operations, for example, when a company has shuttered a hotel location), and finally in situations falling outside either party’s control.

In so doing, we can differentiate between dismissals which are specific terminations of employees (and thus attributable to the worker’s conduct) and layoffs (which instead arise from employer decisions, such as moving or closing a location, or to circumstances outside the parties’ control, such as an accident that renders the employee disabled).

THE RULES SET FORTH IN THE CIVIL CODE: AN ILLUSORY “AT WILL” APPROACH

One must first note that a very general rule on employee dismissals appears in the Civil Code.

To wit, Art. 2118 of that Code sets forth that “either party to the contract may withdraw from a permanent work contract by providing the notice required by industry practice or local custom, or as equity would require”.

Furthermore, the law states that “where no notice is given, the party wishing to withdraw from the contract must pay the other party an allowance equal to the amount of compensation that would have been payable during the notice period”.

As one can see, this very general rules, in theory, allows for at-will employment under the Italian legal system. Actually, specific labour legislation serves to create more stringent requirements for any dismissal, requirements which only recently have been relaxed thanks to a series of regulations known as the “Jobs Act”.

Furthermore, when Art. 2118 speaks of “practice, customs” and “notice”, one must view that in the context of collective bargaining, that is, the agreements that labour unions enter into with management associations to set the minimum requirements for a contract. Thus, for example, the notice required may vary depending on the industry involved.

Returning to rules on dismissals, one must note that dismissal represents the most serious penalty for an employee; therefore, it falls within the scope of the Workers’ Act (Law no. 300/1970), which establishes the following procedure:

  • first and foremost, the restricted or unethical conduct must be alleged to the worker in writing, in a designated disciplinary allegation letter;
  • to wit, the employer must immediately allege that the employee is guilty of the conduct subject to disciplinary sanction. Yet the adverb “immediately” need not be taken literally. Depending on the circumstances (a large corporation or a small business, a “discovery” of the incident made after the fact, etc.), a few days might pass between the violation and the allegation;
  • at this point, the employee has five days to submit his or her response. This is a bona-fide “defence” submitted by the worker against the “accusations” lodged by the employer. In that response, the worker may also request a hearing before the employer, who will then set a date for the worker to explain his or her reasoning, whether in writing or in person;
  • once the response is submitted, and after any in-person hearing on the matter (or once five days from receipt of the initial letter of allegation have passed, where no hearing is requested) the employer may choose whether to apply a sanction, and which to apply. The sanction may indeed be dismissal, where the facts of the matter are serious;
  • the dismissal letter must set forth the reasons leading to the termination (e.g. the employee was caught stealing);
  • the same letter must provide notice which, depending on what is required under the collective-bargaining agreement (a/k/a “CCNL”), may range from a few days to a few months.

Therefore, it is important to carry out the procedure described above prior to dismissing the worker, lest the worker’s dismissal be voided (the worker could file suit on procedural grounds, meaning for reasons involving the “how” rather than the “why” of the dismissal).

DISMISSAL FOR JUST CAUSE

At this point, we should note that there is a situation where the worker is not entitled to notice.

Here we would note the example of a worker whose behaviour is egregious, such as a display of aggression toward a religious brother or sister within the RE.

Another example would be repeated theft of major sums of money perpetrated against the RE.

These cases fall under a special type of dismissal: dismissal for just cause. Indeed, these situations involve misconduct so serious that the work relationship cannot go on, not even temporarily (for example, where there is a concrete possibility that the aggression or serious theft may be repeated, or where the employer’s trust has been irretrievably broken).

Such dismissal follows upon conduct that is so serious, it would be valid even against workers falling into a “protected” class: for example, workers on sick leave may be dismissed for just cause. Remarkably, even workers on maternity leave can be dismissed for just cause.

DISMISSING THE EMPLOYEE FOR REASONS RELATING TO THE EMPLOYEE

Less severe are those instances of dismissal for reasons relating to the employee.

In this case, indeed, the general rule requiring notice shall apply. Therefore, essentially, the worker in this case commits a material breach of his or her contractual duties, but not so severe so as to render continuing the work relationship on even a temporary basis impossible.

Amongst the examples one might cite are an employee’s insubordination toward his/her superiors, or an unexcused absence lasting for more than four consecutive days.

As we will note, although this behaviour is inexcusable, it is less dangerous for the RE compared to those falling into the category of “just cause”.

Therefore, even though dismissal is warranted, the worker will have the right to the notice period contemplated under the Collective Bargaining Agreement (for instance, the CCNL for Tourism contemplates notice periods ranging from 15 days to six months, depending on the worker’s position and seniority).

LAYOFFS

Now we will move on to dismissal which is not the worker’s “fault”, but rather may apply to situations where the employer can no longer keep the employee on staff.

Indeed, it is possible that, due to circumstances relating to production activities, or to organisational restructuring, there is no longer a position for the worker within the RE.

Imagine, for example, a new piece of equipment that renders the worker and his/her job position redundant. There are also situations where the worker, over the course of the employment relationship, no longer meets the requirements he/she met upon hiring, and therefore is no longer fit to carry out his/her assigned duties. Think, for example, of a physical disability due to an accident, or where the worker no longer possesses something required for the job held (such as a driver’s license for a driver).

Naturally, the notice period required under the CCNL applies to layoffs, as well.

RESTRICTIONS AGAINST DISMISSAL

As noted in the paragraph discussing just cause, there are situations in which a worker is afforded special protection against dismissal.

First and foremost is discriminatory dismissal. Workers may not, indeed, be dismissed for reasons relating to their ethnic origin or political creed. A more sensitive matter for RE’s, on the other hand, is an employee’s religious orientation. Although this must be reviewed on a case-by-case basis, one can say that where a worker’s conduct does not accord with the Catholic faith (subject to the restriction against firing employees who are tasked with job duties which are, from an ideological standpoint, neutral), and where his/her whose duties involve an ideological component, they may generally be dismissed, as the restriction does not apply.

Pretextual dismissal is prohibited. This is a dismissal which ostensibly has a legal basis, but where the underlying reason is restricted under the law. Imagine, for example, a layoff ostensibly related to a machine that has rendered a worker redundant, but it is discovered that the machine only handles a portion of the worker’s duties, and the worker is in fact still needed.

Another restriction involves workers on maternity leave. From conception through the first year of the child’s life dismissal is prohibited except, as we have noted, in egregious instances involving just cause.

The same rule applies during a worker’s convalescent period following an illness or injury (known as the “protected period”). In this case, once again, an employee may still be fired for just cause.

SUITS FOR WRONGFUL DISMISSAL

Once a worker has been dismissed, the dismissal might be contested, with a bona-fide lawsuit being filed in court against the RE.

One must note that, following the reforms provided for in the Jobs Act, Italy no longer has a rule requiring reinstatement to the position. Essentially, even where the worker is able to prove the dismissal was wrongful, they would not be entitled to have their job back.

Therefore, now that the Jobs Act is in effect, the rule for the wrongfully dismissed worker is that the employer pays damages to “make the worker whole” after the wrong they have suffered. The measure of damages is fixed at no less than four, and no more than 24 months’ pay, at the most recent salary level.

Therefore, damages are the new rule.

However, the following scenarios in which the worker is still entitled to equitable relief, meaning reinstatement, still apply:

  • workers hired before 7 March 2015 by employers with more than fifteen employees;
  • in instances of in-person (rather than written) dismissal;
  • where there is no tangible reason for the worker to have been fired (such as where the employer “made up” the accusation and then fired the worker based on the fabrication);
  • finally, in instances of discriminatory dismissal.

THE BEST WAY TO PROTECT AN EMPLOYER’S INTERESTS: THE “PROTECTED SETTING”

In order to avoid the issues discussed above, where the employer and the employee part ways under less-than-friendly circumstances, one must enter into an agreement with the worker in order to avoid them later suing the RE.

These agreements, however, cannot be simply drawn up and then countersigned by the worker. The worker, indeed, may only give consent in a protected setting, in which his or her rights are guaranteed.

Failing that, the agreement generated in any other way remains susceptible to being contested by the employee even after they are dismissed.

Thus, the best way to protect the RE from an undisciplined, or perhaps even violent, employee is to execute an agreement before the District Labour Office. This public agency will render the signed agreement unassailable.

In so doing, the RE will no longer need to worry about future or further claims by the worker based on the dismissal, or the employment relationship in general.

Of course, both parties must be amenable to reaching an agreement. Generally speaking, an agreement is reached where the worker is paid, in addition to the monthly salary owed and any accrued severance, an extra amount intended as compensation or settlement.

DOMESTIC WORK

Moving on to those workers who can be categorised as domestic workers (those, for example, engaged solely to assist members of the RE), one must note that such workers may leave their position at will.

Thus, the rule encompasses not only the employee’s right to resign, and who therefore (subject to any required notice period) may leave his/her position at will, but it also allows the employer to dismiss the employee at will (subject, again, to any required notice period).

Naturally, and as we have said, no notice is required in situations involving just cause.

The law, in this respect, contemplates specific notice periods based on: seniority, number of hours worked per week, and whether the employer has provided the worker an independent home.

The employer therefore, to take a systematic approach, would be held to the following notice periods should the employer wish to dismiss the employee:

For a term of employment up to five (5) years: 15 days’ notice

For a term of employment longer than five (5) years: 30 days’ notice

For a work week with fewer than 25 hours:

  • and a term of employment up to two (2) years: 8 days’ notice
  • and a term of employment longer than two (2) years: 15 days’ notice

For workers who live independently, in a home provided by the employer:

  • up to one year of employment: 30 days’ notice
  • more than one year of employment: 60 days’ notice

The employee, on the other hand, is required to give notice to the employer according to the same schedule, but with the timeframes reduced by 50%.

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If you need any assistance with managing the dismissal of an employee, please do not hesitate to contact us via email at info@dikaios.international or by ringing on +39 06 3671 2232, and we will be happy to help you.

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