Can Digital Dismissal Satisfy ‘Written Notice’ Requirements?

To answer this question it is necessary to evaluate:

• whether communications made via digital media comply with the essential legal requirement of a written form of dismissal; and

• whether these means allow the employer to demonstrate actual receipt of the communication.

Italian case law has addressed these issues.

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According to Italian law, the employer ‘must communicate the dismissal to the employee in writing,’ specifying the reasons for it. Dismissal given without observing this requirement is ineffective.

The legislator does not specify anything about the methods of communication of dismissal. In the face of legislative silence, jurisprudence has held that any method that involves ‘transmission to the recipient of the written document in its materiality’ and that ‘give certainty of the fact that it has come to the attention of the worker and of the moment of such knowledge’ is sufficient.

Since dismissal is a unilateral act of reception, the notice is considered ‘known’ when it reaches the addressee’s address, unless the recipient proves otherwise. This is a legal presumption of knowledge based on proof that the communication has entered the recipient’s sphere of knowledge, which can only be overcome by providing proof of the impossibility of the worker having had knowledge of it (without his or her fault).

What specific methods, therefore, have traditionally been considered suitable?

Certainly, hand delivery by a person appointed by the employer, countersigned for receipt by the employee, is a means that allows the employer to demonstrate receipt of the dismissal notice.

Similarly, registered mail, telegram and certified email allow the employer to fulfil and prove both compliance with the requirement of written form and the actual sending and receipt of the communication addressed to the worker.

According to case law, moreover, the production in court of a registered letter (or a telegram) with the shipping receipt constitutes proof of the shipment (even in the absence of the acknowledgement of receipt) and this gives rise to the presumption of the delivery of the document to the recipient and of his or her knowledge.

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In a 2017 ruling, the Supreme Court addressed the case of a dismissal communicated via email. The court started from the premise that the requirement of written communication of the dismissal must be considered fulfilled ‘with any method that involves the transmission to the recipient of the written document in its material form’, which would include an email.

It is clearly important to verify the operation of the presumption of knowledge so that the employer can be certain that the communication has been received by the worker. Such certainty may derive, for example, from the employee’s response to the email. It may even derive from the employee’s challenge of the dismissal itself: if the purpose of the written form is to inform the employee of the dismissal, the employee could not challenge the notice of dismissal without inevitably admitting to having received it.

In the case examined by the Supreme Court, receipt of the communication was inferred from the fact that the employee had sent a series of emails to colleagues in which he spoke of the termination of his employment relationship at the employer’s request.

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A similar argument was made in the case of dismissal communicated via WhatsApp. The judge reiterated the principle established by case law that to communicate dismissal, specific formulas are not necessary, but it is sufficient that the intention to dismiss is communicated clearly and that the worker has become aware of such communication.

The WhatsApp message was considered by the judge to be an electronic document clearly attributed to the employer and from which the unequivocal intention to dismiss was effectively communicated to the employee (demonstrated by the fact that the employee had promptly filed an extrajudicial appeal).

In this case, the initial message was not sent by the employer, but by a third party without the power of representation. However, the court noted that the employer confirmed its intention to withdraw from the relationship, citing the principle that the concept of retroactive ratification of a contract is also applicable to unilateral actions such as dismissal.

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Even a dismissal sent via text message can satisfy the requirement of written form if it is provides certainty regarding the origin of the communication from the employer and intelligibility of the contents of the communication, characterised by a clear will to terminate.

In the two cases examined by the Italian courts, the text message – defined as an electronic document signed with a ‘light’ electronic signature – was understood by the recipients as the actual communication of a dismissal coming from a company telephone number, to the point that the employees had immediately proceeded with appeals.

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As highlighted by the case law, in order for dismissal communicated with non-traditional means to be legitimate, it is necessary that the employer’s intention to dismiss is unequivocal, there are no doubts about the origin of the communication by the employer, and the relevant content has reached the worker’s knowledge.

These rulings are of particular relevance for smaller employers, which are more likely to use communication methods other than the traditional registered letter for giving notifications to employees.