international employment law firm alliance L&E Global

Italy: When the dismissal served by registered letter starts producing effects?

The employee was dismissed for disciplinary reasons by registered letter which was never picked up and thus remained in deposit at the post office.

According to Italian labour law, the dismissal (to be qualified under the category of unilateral receptive act) is effective from the date the employee is acknowledged of the termination.

In the first two instances of judgment, the plaintiff’s request of declaration of the unlawfulness of the termination had been rejected, since the time limit for the employee’s challenge of the dismissal expired.

The Italian Supreme Court, with decision no. 15397 of 31 May 2023, confirmed the previous judgments and provided for some interesting clarifications on the matter regarding the legal presumption of knowledge of termination and hence the effectiveness of the dismissal.

The Court explained that in application of the general principles set forth by Sections 1334 and 1335 of the Italian Civil Code, the dismissal “takes effect from the moment it comes to the knowledge of the person to whom it is addressed“.

By virtue of such provisions, the dismissal notice sent by registered letter is considered legally known at the time it reaches the employee’s address: this is a legal presumption of knowledge that operates by the sole objective fact of the arrival of the letter to the recipient’s (i.e. the employee) address and may be overcome only by an adequate proof of the impossibility of knowledge through no fault of the addressee.

In the case examined, the Court of Cassation deemed that the employee was not able to prove that it was impossible for her to have been informed of the notice without fault, since the letter of dismissal was received at the address she had provided to the employer (moreover, the employee was also required under a specific collective contractual obligation to “promptly” communicate any change of residence or domicile to the employer) and that the mere statement that she had never found the notice of dismissal in her mailbox could not be regarded as sufficient to overcome the said presumption.

On the contrary, the Supreme Court considered suitable to demonstrate the employee’s knowledge of the content of the letter, the documentation provided by the company evidencing all the activities carried out by the postal agent in charge of the delivery. More specifically, the employer produced the shipment receipt of the registered letter containing the dismissal, accompanied by the information sheets extracted from the website of Poste Italiane – which is “the body entrusted of the essential public service represented by the universal postal service assigned with the task of performing certification functions” – from which it was unequivocally inferred that, even if the registered letter had not been received by the addressee, it had been deposited at the post office and it had been returned to the sender once the period of deposit was completed.

In the light of the above, the Court of Cassation held that in the case at issue the notice of dismissal by registered letter deposited at the post office and never picked up was valid for the purpose of the effectiveness of the employee’s termination. It shall be pointed out that the Supreme Court came to that conclusion although the employer did not produce copy of the receipt of the deposit at the post office put in the employee’s mailbox.

The implications arising from the judgement deserves attention. Indeed, it establishes that the burden of proof on the employee to demonstrate the impossibility of knowledge is rigorous and that the presumption of knowledge of the dismissal operates if sustained by adequate evidence.

As remarked, this profile is crucial since the terms for the employee to challenge the dismissal (60 days) starts from the date of his/her acknowledgement of the dismissal itself.

Key Action Points for Human Resources and In-house Counsel

  • Employers shall be aware of the cruciality of the acknowledgement by the employee of the termination and of the consequent impact on the effectiveness of the termination itself.
  • In consideration of the significant implications given by the acknowledgement of the dismissal on its suitability to produce effects, employers should take care of the notification procedure (e. the receipt of the notice of dismissal at the employee’s domicile), when terminating employees through registered letter.
  • In case of dispute, the employer is burdened to demonstrate accurately the property of the notification procedure carried out, being not sufficient to integrate the presumption of knowability the production of the receipt of shipment of the termination letter.