Returning from holidays is not only a matter of organization but also a delicate moment from a legal perspective.

It is important for companies to adopt clear policies on holidays and returns. However, in cases of suspicious absences, it is essential to act promptly and in compliance with formal requirements.

It may happen that an employee fails to return to work on the agreed date, without providing any communication or justification. In such cases, the absence is considered unjustified, with potentially significant disciplinary consequences.

Employee obligations and legitimate reasons

Employees are required to resume work at the end of their holiday period. If this is not possible due to reasons beyond their control (illness, flight cancellations, strikes, extraordinary events), they must immediately inform the employer and provide suitable documentation.

Without proper communication or supporting evidence, the absence is deemed unjustified and constitutes a breach of contractual obligations.

Legal consequences

No more (forced) dismissal in the event of prolonged employee absence.
Now, such cases can rightly be considered as voluntary resignation.

If the unjustified absence exceeds 15 days, the employment relationship is deemed terminated by the employee’s will. (Law No. 203 of 13 December 2024, Article 19, amends Article 26 of Legislative Decree No. 151 of 14 September 2015, introducing paragraph 7-bis).

This amendment aims to adequately protect employers and prevent employees from obtaining dismissal through prolonged absence.
It also addresses a legislative gap that in the past allowed employees to exploit disciplinary dismissal procedures for abandonment of the workplace in order to unlawfully access the New Social Insurance for Employment (NASpI).

Previously, employees could end their employment without formal notice and still access this benefit. This loophole placed employers at a disadvantage, forcing them to pay the so-called dismissal fee an additional cost equal to 41% of the NASpI monthly maximum for each year of employment while also exposing them to potential legal challenges.

Ensuring legal certainty in the termination of employment is crucial, particularly when the employee’s conduct is clearly inconsistent with their duty of diligence.

The rationale of this rule lies in preventing situations where the termination of employment is de facto evident but not formally declared in writing, although it clearly reflects the employee’s intention to leave. The authenticity of the resignation must be assessed in light of the principles of fairness and good faith, which govern the entire contractual relationship. The employee’s conduct must therefore be objectively evaluated to determine whether there is clear evidence of their intention to terminate the contract.

It is also essential to ensure that no unlawful pressure is exerted by the employer that could undermine the genuineness of the employee’s decision.

Following such a period of unjustified absence, the employer is required to formally notify the National Labour Inspectorate via certified email (PEC). The Inspectorate is responsible for verifying the accuracy of the report; however, if the verification is not carried out in a timely manner, the employer may consider the employment relationship terminated due to resignation, citing the relevant legal provision.

The communication must include all necessary details, such as any telephone numbers or email addresses held by the employer, to enable the Inspectorate to make a proper assessment and, if necessary, contact the employee.

The Law Firm is available for any assistance in this matter.