The resolution of the employment relationship requires procedural written form as an element fondamentale per l’estrinsecazione in modo certo e puntuale della volontà di recedere: tale volontà negoziale di risolvere il rapporto deve quindi risultare da un documento diretto al lavoratore al fine di poter tutelare il suo interesse ad una eventuale impugnazione nei termini decadenziali.
La forma scritta per la validità del licenziamento non implica che la volontà di recedere sia espressa attraverso formule particolari, ma risulta sufficiente che la stessa sia espressa anche in forma indiretta ed implicita, ma nello stesso tempo intelligibile, di modo da escludere che nel destinatario si creino dubbi o certezze in relazione alla volontà o meno del dichiarante di estinguere il rapporto.
The employer in the establishment in the appeal of the dismissal notice verbally, and therefore without the written procedural , in most cases set the defense arguing that the termination of work has actually resulted in the resignation of the worker from whom requires as a counterclaim to the payment of the sentence in lieu of notice period, in other cases the employer alleging termination of employment by mutual consent.
arises in this way the problem of identifying the party that are subject the burden of proving the conditions for the termination of the employment relationship: the second option interpreted proof borne by the worker who is acting for the ineffectiveness of the dismissal intimatogli orally and in any case to demand the restoration of broken relationship in an unlawful manner by the employer , only applies to the termination of the employment relationship and that its exclusion from the workplace, the employer will have against the contrary evidence that the same interrupt has occurred due to resignation of the worker and therefore is required to prove the facts on which base their reasons.
In any case, it is well established principle in this regard that the event of the worker's actual and unconditional desire to terminate the employment relationship must be subject to close supervision and rigorous evidence, given the seriousness, the worker, the consequences of such an act in relation to property legal come into play and that is subject to a privileged protection in order.
In particular, the Supreme Court, the sentence no 2772 8 February 2010, has expressly stated that in cases in which the employee has brought a claim alleging that he was fired verbally and the employer has requested the rejection of pleading that demand the resignation of the employee, the court violates the principle of correspondence between the requested and delivered if it were to qualify on their own, as there were no exceptional circumstances such as the contract was terminated by mutual consent.
This is because the facts extinct, preventative and automatically changes that have produced their effects should be reported to the court to always and only if they are attachments on the side.
The Court then stated that any termination of employment must be determined by mutual consent with special rigor and, if not is contained in a formal act, must result from conduct that unambiguously highlighted the complete lack of interest of both parties to continue the employment relationship itself.
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