Dimarco & Partners International Law Firm

Our Employment Lawyers in Milan, Italy are specialized in the field of  Labour Law. We assist corporate entites, employees and managers involved in labour issues in the whole italian territory. This department of the Law Firm counts on expert professionals, with more of 20 years of practice in labour law.
During the last years the Labour Law changed several times (Fornero reform in the year 2012,  in 2015 the Jobs Act made a strong revolution, and again on 07.08.2018 the government issued the "decreto dignità" converted in law). The last event that changed the labour law in Italy was a sentence of the Constitutional Court, in September 2018.
Dimarco & Partners, and its team of qualified italian lawyers, offers a wide range of legal services in the field of labour law as for example individual dismissals, collective dismissals, manager dismissals, contracts, retirement incentives, conciliations and litigation. We provide also consultancy to Corporate entities during transactions, in mergers and acquisitions and in the transfers of business. In these operations, that often involve a corporate reorganization and a review of the workforce, the role of the lawyers becomes crucial to proceed correctly. We provide a customised assistance for corporates, for managers and individuals.​

I. Legal assistance in favor of Corporate entities:
​Once a foreigner investor enters in the italian market, he needs a qualified assistance in the matter of employment law. Italian rules are complicates and there are many specific laws that a company shall respect in order to avoid administrative fines, criminal proceedings and disputes in front of the labour authorities.
Our employment lawyers in Italy  provide the following services to Corporates entities:

• Company reorganization
• Employees dismissals and retirement incentives
• Advice on employment contracts, permanents and temporary ones
• Appeal dismissals promoted by employees or management
• Representation in judicial litigation
• Court disputes against employees or agents
• Conciliation in front of the Unions and DTL (Direzione Territoriale del Lavoro)
• Advice on collective dismissals
• Consultancy about agency contracts
• Advice about permanent contracts
• Assistance and representation in front of the labour inspectorate
• Assistance in court proceedings promoted by employees concerning wage differences
• Asssistance in workplace injuries
• Drafting letters of dismissal
• Drafting disciplinary claims
• Assistance in cases of unlawful transfer of employees
• Assistance in dismissal of a manager
• Assistance in cases of mergers and acquisitions
• Collective dismissals of Managers
• Assistance in transfer of business and transactions

II. Legal assistance in favor of dismissed executives:
Our team of employment lawyers in Italy has many years of experience in assisting managers of national and multinational companies in the procedures of appealing the dismissals received from the employer. The role of manager is assigned to those who are considered the alter ego of the employer and they normally have the autonomous decision making powers to achieve the objectives of the company. This category, although it  has some peculiarities, is included in the definition of employee contained in the art. 2095 of the Italian Civil Code.
Our lawyers, specialized in labour law, provide assistance in favor of executive managers according to a method inspired by the procedural accuracy, following a predefined process and through the following steps:

• Analysis of the documentation provided by the Manager who received a dimissal letter in Italy:

In this first phase our Labour lawyers check the documentation (including the applicable national labour contract) and provide a first evaluation of the case, explaining to the Client any possible profile of unlawfulness of the dismissal letter from a formal or procedural point of view. They also evaluate any violation that could be denounced to the Labour Inspectorate.

• Appealing the unlawful dismissal:

If after the preliminary analysis it turns out that the dismissal is unlawful, the manager has 60 days from the receipt of the dismissal letter to appeal it. The appeal of the dismissal has to be drafted with accuracy, as it cannot be changed in a second moment.

• Phase of negotiation and conciliation between the Manager and the Company

It happens often that the employer, after receiving the appeal of the dismissal, contacts us to define the controversy in an amicable way. In this phase our italian attorneys try to obtain the most favourable conditions for their Client. If the proposal of the company is accepted by our Client we draft the conciliation deed. If the agreement is not reached, the next phase will start.

• Judicial phase - Litigation in front of the Labour Court

If it is not possible to reach a transaction in the previous phase, our labour lawyers will sue the company in order to obtain the right compensation.

• Settlement or judgment

During the court trial, our lawyers will try to reach a settlement with the company (the judge will try the conciliation in the first court hearing) or, if it will not be possible, they will represent the Client during the whole procedure. If the procedure ends with a favourable judgement, we will enforce the decision through the notification of any possible attachment to the goods/properties/bank accounts of the company.

​III. Legal assistance in favor of Employees:
Our Law Firm is also specialized in assisting individuals dimissed from their work place. The contestation must be carried out with extreme precision, indicating all its unlawful element within 60 days from the receipt of the dismissal letter. This is a perentory tem and if it is not observed, the employee loses all the rights to sue the employer. This terms is not generally applied for oral dismissals. There are are various reasons to fire a worker and we can underline the aspects of the different kinds of dimissal:
A) DIMISSAL WITHOUT NOTICE - DISMISSAL FOR JUST CAUSE (licenziamento per giusta causa):
Under the article. 2119 of the Italian Civil Code, the working relationship can be terminated at any moment without notice, whenever something occurs which prevents the continuation, even temporaly, of the working relationship. It demands a significant violation of the employee.
Sometimes it is not easy to distinguish the differences between the dimissal for just case and the dismissal for infraction. The distinction between the two figures is only quantitative, not qualitative (the just cause belongs to extremely relevant misconducts, meanwhile less important misconduts will bring to dismissal for infractions. As we will analyze during this chapter, there is a relevant difference between the consecuences of these two kinds of dismissals.
According to art. 5 Law 604/1966 the employer should prove the misconduct of the employee and not viceversa. In case the employer doesn't manage to prove the relevant misconduct, the dismissal has to be considered unlawful with the following possible consecuences:

• If the misconduct exists but it is not considered enough relevant to bring to dismissal for just cause, the employee, according to the Jobs Act, will receive an indemnity of 2 months for every year of work made in the company, with a minimum of 4 months and a maximum of 24 months. The "decree Digniity - Decreto Dignità", that became effective on 07.08.2018, amended this provision establishing a minimum of 6 months and a maximum of 36 months -.
• If the material fact that brought to the termination for just cause does not exist (for example the employee is fired because he stole a computer but in the end the computer was not stolen), the judge will order to the employer to reinstate the employee and to pay him a compensation for the damages equal to his salary from the day of the dismissal untill the day of the effective reinstatement, with a maximum of 12 months of salary.

B) DIMISSAL FOR SUBJECTIVE JUSTIFIED REASONS (licenziamento per giustificato motivo soggettivo):
This type of dismissal requires a significant breach of the worker (ex. Art. 3 Law 604/1966). This figure differs from the termination for just cause (art. 2119 cc) for the following profiles:

• the misconduct of the worker is less serious than the one rquired in the dismissal for just cause;
• the notice period has always to be paid, differently from the dismissals for just cause.

As a general rule, in case of unlawful dimissals for subjective justified reasons, the judge cannot order the reinstatement of the employee in the workplace. The compensation provided to the worker in case of unlawful termination is an indemnity of 2 months for every year of work made in the company of the employer, with a minimum of 4 months and a maximum of 24 months. 
The "decree Digniity - Decreto Dignità", that became effective on 07.08.2018, amended this provision establishing a minimum of 6 months and a maximum of 36 months -. ​
However, if the material fact that brought to the termination does not exist (for example the employee is fired because he stole a computer but in the end the computer was not stolen by him), the judge will order to the employer to reinstate the employee and to pay him a compensation for the damages equal to his salary from the day of the dismissal till the day of the effective reinstatement, with a maximum of 12 months of salary.
C) DISCRIMINATORY DISMISSAL (licenziamento per motivi discriminatori):
Under the Article n.15, Law 300/1970 - Workers' Statute - a dismissal is considered discriminatory if the reason depends from one of the following reasons:

1. membership or will to join a trade union;
2. if the employer decides to mody the tasks of the employee, to transfer him, to adopt disciplinary measures because the worker joins a trade union or partecipates to a strike.
3. if there is one of the following discriminations: political, religious, racial, of sex, handicap, age, sexual orientation or belief.

Disciminations can be classified in two typologies according to art. 25, Legislative Decree no. 198/2006:
A. Direct discrimination any provision, criterion, practice, act, pact or behavior that produces a discrimination of an employee or a less favourable treatment. 
B. Indirect discrimination: any provision, criterion, practice, act, pact or behavior apparently neutral that bring a particular disadvantage of some employees.
The consecuences of the disciminatory dismissals are the following ones:

• payment of an indemnity to the worker based on the last salary for any month between the dimissal and the reintegration with a minimum of five months.
• reinstatement of the employee: in this case,, described by art. 18 c.1,  the employer will reinstate the worker. Anyway, the employee can choose alternatively an indemnity of 15 months of salary.  In order to choose this second option the worker should communicate it to the employer withing 30 days from the judgement or, before the judgement,  within 30 days from the decision of the employer to reinstate the employee . If the employee doesn't come back to his workplace in the term of 30 days from the invitation of the worker, the labour contract is considered terminated.
• The employer will have to pay the social security contributions from the date of dismissal to the daye of the reinstatement ordered by the Court.

D) DIMISSALS FOR CRISIS OF THE COMPANY (licenziamento per giustificato motivo oggettivo):
The employer can also order the dismissal for objective justified reasons. This type of dismissal is one of the most common in case the companies try to reduce the business costs and the cost of the workers.  According to article 3 of the Law 604/1966, this kind of dismissals are determined by reasons related mainly to production and work (re)organization.
There are two mainly hypotheses to dismiss an employee for objective justified reasons:

• overstaffing: the company states that there are too many employees compared to the current needs of the company - determined by the market crisis, or by the adoption of new technologies or by the development of more efficient production processes.
• situations related to the worker: if, for example, an employee becomes disable after an accident and it is impossible for him to continue his duties inside the company.

In the process the employer should prove the existence of the reason of the dismissals and the direct relationship between the economic reasons and the dismissal notified to the worker. In any case the employer, if there is a possibility to hire the worker in a different position inside the company, has always the duty to purpose it to the employee (cd . obligation to repechage) or the dismissals are considered unlawful.
Please note that for all the cases above, except the disciminatatory dismissals, the Constitutional Court, on 26.09.2018, decided that the criterion of the years of service in the company is not constitutional. That is why now the Court has discretional powers to establish the indemnities between a minimum of 6 months of salary and a maximum of 36 months, not taking in consideration only the years of service in the company.

As for the protection of the worker we offer the following services:

• Appeal the dismissal
• litigation in front of the labour courts
• conciliations before the unions and DTL
• negotiations for incentives
• assistance in the collective redundancies
• disputes regarding agency contracts
• mobbing and compensation for damage
• debt Collection of TFR
• debt collection of wage differences
• assistance in disciplinary proceedings
• assistance against unlawful transfer
• assistance in work off the books - black work.

Our Lawyers in Italy are specialized in debt collection in all the italian cities in favor of foreign Clients. Our experience in the field of debt recovery allows us to collect significant amounts of money in favor of our Clients. Our Law Firm represents important national and international multinational corporate entities, handling a relevant amount of cases per month concerning unpaid invoices, loan agreements or contracts. We believe that the approach has to be methodological and for this reason we divide our activities in precise phases:

• Analysis of the italian debtor;
• Extrajudicial phase: drafting a formal legal notice of payment against the debtor located in Italy;
• Telephone contact to the Italian debtor;
• Court action;
• Enforcement procedure on properties, bank account or credits belonging to the italian debtor.

After the analysis of the italian debtor, our Debt Collection Department drafts the formal legal notice of payment. In this stage our Law Firm will try to achieve the full payment from the debtor or to reach a settlement, trying to avoiding the judicial action in the best interest of the Client. The importance of this phase is not just warning the debtor that a judicial action is going to start but it has also a further meanings. Commercial credits may have a limitation period of five/ten years (depending on the kind of credit): it means that if the creditor waits more than five/ten years without interrupting the limitation period, his right will be extinguished.

Our lawyers in Italy are specialized in intellectual property law and they assist the foreign clients in all the related matters. We provide extrajudicial and judicial assistance about  patents, trademarks, design, domain names, unfair competition and antitrust law.  Our main fields of activity are the following ones:

• Intellectual property litigation in Italy:

Our lawyers make a specific analysis on the matter, informing the Client if there are profiles of wrongfulness in the behaviour of another part, suggesting the right solutions to compose the controversy in an ambicable way or if it is worth to proceed in front of the italian courts. We take care also of national and international arbitrations concerning intellectual property.

• Protection and registration of trademarks in Italy:

Our main activities are to give consultation to the client in order to protect his trademark against third parties violations. We also take care of all the duties for the registration of a trademark, national, european or international. In this last phase we provide all the activitie of reseach, identification of the classes of the products as per the international Classification of Nice and in the end the activity of registration.

• Protection and registration of patents in Italy:

Our lawyers in Italy provide all the activities for the protection of trademarks in front of the italian courts and also the registration of the trademarks concerning:

1. Industrial design rights
2. Utility models
3. Copyrights
4. New Plants varieties
5. Topographies

Our Lawyers in Italy are specialized in separation and divorce legal assistance in the whole italian territory. In our team, all the professionists are english speaking lawyers. In Italy it is possible to require different court trials or in-house procedures, depending if between the housband and the wife there is a will to reach an agreement or not. In Italy it is compulsory to file the separation to obtain the divorce with a separate procedure. The experience of our italian lawyers can often permit the parties to find an agreement before the court trial also in cases of important conflicts between the housband and the wife. During the years we assisted many expatriates ("expats"), advising in english and providing a very understandable and clear assistance for a foreign Client.
We can resume the family law concerning separation and divorce proceedings in Italy as follows:

1. SEPARATION IN ITALY BY MUTUAL CONSENT IN FRONT OF THE COURT
If the parties agree on the conditions of the separation they can hire an italian lawyer to file a lawsuit - in favour of both of them - to require the judge to confirm the conditions purposed. The judge sets a court hearing in which the parties wil be heard personally in order to evaluate their common will of separation and in order to check the correctness, according by the law and by the concrete situation, of the conditions required by the housband and the wife.
After the evaluation, the judge will issue a judgement (homologation) that will allow the parties to live separate.
The main elements that will be examined are the destination of the family house where the parties used to live together, alimonies in favour of one the parties or in favour of the children, custody and visitation of the children and the division of the assets like cars or bank account.
The marriage is not broken at the end of this procedure but the judge authorize the parties to live separated, without the duties of marital fidelity and cohabitation. The ratio of this procedure, together with the time the parties have to wait before filing for the divorce, is studied to permit the couple to reconciliate. Before the time to file the divorce was 3 years, reduced to 6 months by the law 55/2015. After the separation, at any time, the parties can file a recourse to modify the conditions of separation.Normally the first court hearing takes place in 3/4 months after delivering the lawsuit to the competent court, and the judgement requires in the biggest court districts 3 or 4 months to be available.

2. IN-HOUSE SEPARATION IN ITALY MADE BY THE LAWYERS "NEGOZIAZIONE ASSISTITA"
Recently the decree 132/2014 introduced in Italy the procedure called "negoziazione assistita", which is the fastest in case the parties are willing to find an agreement concerning the separation, the family house, the custody of children, the alimonies and the division of the goods instead of filing a lawsuit. The in house separation can be used as well for the consensual divorce and to modify the conditions of separation. In this case the lawyers lead all the procedure, without the need to file any recourse to the court, saving a considerable time for the parties.
In the first stage the lawyer of one of the parties "invites" the other party to join the procedure, giving a term of 30 days to communicate the acceptance or the refusal.
Then the parties, with the help of the lawyers, set all the conditions of the separation (or divorce), included the custody of the children, and they are signed directly in the law firm. The lawyers authenticate the signatures of the parties and the agreement is sent to the Pubblic Accusator (Pubblico Ministero) of the competent district (to obtain the confirmation of the conditions) and to the municipality where the marriage was registered.
We always advise to follow this procedure as it takes 2/3 months to be finished and it can be applied to any situation that before needed a Court Trial.
In case there is a transfer of a real estate connected to this procedure, it will not be subjected to "imposta di registro", which is a relevant tax, as confirmed from the Tax authorities, resolution n. 65/E, made on 16.07.2015.

3. JUDICIAL CONTENTIOUS SEPARATION IN ITALY
Our Law Firm, in case the parties cannot reach an agreement in the pre-contentious phase, will represent the client in a judicial separation proceeding, which is an ordinary judgement.
The separation has to be filed to the competent Court which, according to art. 706 of the italian civil procedure code could be, with subsidiaries criterias:

• the place of the last common residence in Italy of the spouses;
• the place where the defendant has the residence or domicile in Italy;
• if the defendant is resident abroad or it is not possible to find him/her, in the place of residence or domicile of the plaintiff in Italy;
• if the plaintiff is resident abroad, in any italian court.

The spouses have to appear at the first court hearing personally and according to art. 708 of the italian civil procedure code the president of the Court section has to speak separately to each part and try their conciliation to set all the terms of the divorce. If it is not possible to reach the conciliation, the president of the Court section, disposes all the temporary and urgent measures that are needed and the process will go ahead with another Judge that will be appointed. In the next court hearing in front of the new Judge, he can pronounce a non definitive sentence of separation, according to art. 709 ter of the italian civil procedure code, treating during the continuation of the process the custody of the children, the divorce " with charge", and the alimonies. The process will terminate with a sentence.
The spouse could also require the Court the separation "with charge" in case some violation of the duties descending from the marriage are ascertain during the procedure (for example if there is a violation of the marital fidelity or the family house is left by one of the spouses).
During the procedure it is possible to treat about the separation, the family home, the custody of the children, the visit of the children and the division of the goods.
The procedure is a normal first instance Court trial where the judge will analyze the proves and issue a sentence of the end of the procedure. The estimated time, in general, is between 1.5 and 3 years.

4. DIVORCE IN ITALY BY MUTUAL CONSENT
Once the parties are separated, they can require the divorce lodging a mutual claim to the court with the same modalities of the separation by mutual consent. This procedure will cancel the effects of the marriage, comprised all the duties from one spouse to the other. The judge will issue the definitive sentence of divorce.
Normally the parties, in order to file the divorce, they have to wait 6 months aftert the separation in case of consensual separation and 1 year in case of judicial separation.

5. IN-HOUSE DIVORCE IN ITALY MADE BY THE LAWYERS "NEGOZIAZIONE ASSISTITA"
As for the separation, it is possible to obtain the separation directly in the office of the italian lawyer, with the same modalities of the in-house separation. Normally the parties, in order to file the in-house divorce, they have to wait 6 months aftert the separation in case of consensual separation and 1 year in case of judicial separation.

6. JUDICIAL CONTENTIOUS DIVORCE IN ITALY
In case the parties do not agree in the conditions of divorce, each spouse can lodge a claim addressed to the Court in order to require the sentence of divorce according to the law 898/1970 and further modifications.
The divorce has to be filed to the competent Court which, according to art. 4 comma 1 could be, with subsidiaries criterias:

• the place of the last common residence of the spouses;
• the place where the defendant has the residence or domicile in Italy;
• if the defendant is resident aboad or it is not possible to find him/her, in the place of residente or domicile of the plaintiff;
• if the plaintiff is resident abroad, in any italian court.

The spouses have to appear at the first court hearing personally and according to art. 4 comma 7 the president of the Court section has to speak to each part and try the conciliation to set all the terms of the divorce. If it is not possible to reach the conciliation, the president of the Court section, after hearing the children who are more than 12 years old (even younger) disposes all the temporary and urgent measures that are needed and the process will go ahead with another Judge that will be appointed. In the next court hearing in front of the new Judge, he can pronounce a non definitive sentence of divorce, according to art. 4 comma 12, treating during the continuation of the process the  alimonies.
The spouse could also require the Court the divorce "with charge" in case some violation of the duties descending from the marriage are ascertain during the procedure (for example if there is a violation of the marital fidelity).
With the divorce the marriage does not exist anymore and the spouses can get married again.

We will be at your disposal in order to provide our profesionality to assist you in separation or divorce cases