Unjustified absence and termination of employment, news from the Ministry of Labour

On last 27 March, the Ministry of Labour and Social Policies published the Circular No. 6/2025 ('Law No. 203 of 13 December 2024 laying down 'Labour Provisions' - First Operational Directions'), in which it provided some operational directions regarding the regulations introduced by Law No. 203 of 13 December 2024 (the so-called “Collegato lavoro”). In this regard, among the various innovations introduced by this law, Article 19 of the Collegato Lavoro provides for the introduction of paragraph 7-bis in Article 26 of Legislative Decree 151 of 2015, according to which, in the event of unjustified absence of the employee beyond the term provided for by the NCLA – or, lacking that, exceeding fifteen days - the employment relationship is considered terminated, except in cases of force majeure or for reasons attributable to the employer. The law therefore states that the employment relationship may be terminated “by the conclusive facts” of the employee who, by his/her unjustified absence, shows objective disinterest in the continuation of the relationship. With respect to this case, the Ministry, in the aforementioned circular, clarifies that the termination of the employment relationship due to "de facto resignation" is discretionary, meaning that it occurs if the employer decides to avail itself of this possibility and, therefore, it does not automatically results from unjustified absence. That said, the Ministry has specified that the duration of unjustified absence is 15 calendar days only if the relationship is not regulated by the NCLA or if the relevant NCLA provides for a shorter term. The circular specifies that the telematic termination procedure following a de facto resignation is ineffective if the employer subsequently receives notification from the Ministry of the employee’s resignation (including for just cause). Lastly, it should be noted that the employer's communication of his/her intention to make use of the “de facto resignation” starts the five-day period within which the mandatory communication to the Ministry of Labor certifying the date of termination of the relationship (using the UNILAV form) must be made. Finally, it should be remembered that, for the period of the employee's unjustified absence, the employer is not obliged to pay wages and contributions.

Authored by Vittorio Moresco and Giulia Maccioni.