Italian law, art. 2 law 604 1966, provides for that dismissal is “ineffective”, that is to say that it never occurred, the working relation therefore still exists and the worker has the right to keep on working and being paid. It doesn’t matter whether the firm employs more than 15 workers or not. Dismissal is a unirateral receptive unbreakable act, without a letter dismissal doesn’t exist.
For instance, a migrant worker was orally fired in February 2002, this dismissal is ineffective. The above said person was of coarse in Italy during the three-month period coming before September 10 2002 and was also employed according to the law even if his/her employer believes to have fired the employee.
Anyone would smile thinking of the police reaction at the foreign people office. We suppose, on the other hand, that the judge sentence would be rather different. In fact courts enforce the law not government’s will. A solution is therefore appealing to court.
“Law advisors management” introduced the captious concept of pardon’s application forms “reception” and tried to guarantee the fact that regularization only depends on employers will in obedience to “residence contract” juridical monstrosity. It anyway seems that post offices are accepting pardon application forms without difficulties.
In case post office clerks refuse to accept the folder, he/she would probably commit a tort connected to art. 2952 cc which orders to the ones working under a monopoly system to offer their services.
– Workers can send to Prefettura a registered letter containing all documents required by pardon. Emergence statement is to be left out, of coarse, when employers refuse to regularize their workers and they “fire” them.
– This above quoted document must be replaced with another document proving that the working relation investigation proceedings have begun. Investigations will verify that the person was actually working during the three-month period. This document could either be:
1) an authentic copy of the petition registered to Labour court
2) a copy of local Labour Department conciliation application
3) a copy of the eventual report to Labour Department
Prefettura (its own immigration office:Ufficio Unico per l’Immigrazione) will probably deny regularization or most probably won’t even give answer to the application without emergence statement. After the 20 days provided for by law appointed for the answer to come, it would be better to put Prefettura in arrears via registered letter. If no answer comes, after 30 days the application can be considered denied and therefore petition to TAR can be filed.
Such petition should be expenseless because taxes are exempted when dealing labour matters.
In front of TAR an objection of unconstitutionality can be raised on pardon law decree matters (art. 33 Bossi-Fini law consercing house helpers) which discriminate workers leaving to employers will the resolution of acknowledging previous work done during the three-month period before September 10 2002.
These assumptions are confirmed by many legal advisors, especially ASGI’s.