Question – Hello, we would like to understand what’s to happen to a firm that regularly employed a non-Eu citizen some time ago.
This worker went to have his papers renewed past May 20th 2005, he went two days late from papers’ expiry date. He wanted to have the well known hearing appointed. Police headquarters fixed the hearing and gave him a document that states that this worker is to give papers renewal documents in June 3rd. Today this person only holds this document and the firm are very worried, so worried that it is considering firing this worker. What should be done?
Thanks a lot for your involvement.
Sportello Extrapoint – Associazione degli industriali
Answer – There is no need for the firm to be worried. Firms and workers need to sign residence contracts even if employment started years ago as the rules for the enforcement for the law provide for. This contract shows the labour contract essential elements, housing and repatriation expenses availability. Residence contracts must be sent via registered letter to Prefecture’s front office.
This contract should have already been sent in spite of papers renewal; we are in fact talking about a document that is directly signed by employers and employees. Residence contracts’ form is downloadable at our web-page, at Ministry of welfare and Prefecture’s web-pages and there are no time limits.
In addition to this the fact that the non-EU worker holds a document that states that he has the hearing fixed shows that the same worker is to apply to papers renewal.
No sanctions should occur, Immigration consolidated act art.22 paragraph 12 precises that “employers employing migrants that have no residence papers – or whose papers expired and migrants did not apply to papers renewal – are punished with a six months to one detention and a 5.000 Euro fine”.
The migrant worker we are talking about applied to papers renewal late. Immigration consolidated act states that migrant citizens should apply to papers renewal two to three months in advance according to papers’ length. Anyway law does not provide for any sanction if this is not being respected.
Nowhere it is said that in case workers do not apply months in advance to papers renewal they are to lose them. Actually it is the opposite: migrants are considered irregular when they have no residence papers or papers expired more than sixty days before and renewal was not applied to.
The situation we are today studying refers to a person whose papers expired two days before applying to renewal: this means that this person could have become a clandestine within 58 days. Law does not consider this worker irregularly staying and this is why he was allowed to fix papers renewal’s hearing at police headquarters. Labour can regularly proceed therefore.
In case the firm fired this worker on basis of the quoted matters, we are quite sure that this worker could impugn dismissal and court would agree with the worker’s point of view.
At this point the employer can keep on employing this worker, he/she cannot exactly know whether this person really applied to papers renewal or not, he/she can only trust the worker. How can an employer verify that workers applied to papers renewal? They can only ask to see the receipt. This specific situation is rather strange: in fact the employer knew when papers expired and could have the worker go to police headquarters on time… The same employer committed a violation, which was overcome in the meanwhile by the employee. Theoretically speaking he/she could be sanctioned for these two days of irregular employment. The worker is now regularly working but both employer and employee will have to sign the residence contract as soon as possible. We can only say “good luck” to the employer that violated law…