By the Labour Law Department
About one year after the introduction of resignations by conclusive conduct through Law No. 203/2024 (the so-called “Collegato Lavoro”), the practical application of the new mechanism appears far from straightforward.
The measure was introduced with the declared aim of countering opportunistic conduct — particularly unjustified absences deliberately intended to trigger disciplinary dismissal and allow access to NASpI unemployment benefits. However, the new framework has ultimately generated a fragmented interpretative landscape, which now requires employers and HR managers to adopt an extremely cautious approach.
The rule: a legal presumption far from simple
The new paragraph 7-bis of Article 26 of Legislative Decree No. 151/2015 provides that, where an unjustified absence continues beyond the period set by the applicable collective bargaining agreement (CCNL) — or, failing such provision, beyond fifteen days — the employer, after notifying the National Labour Inspectorate, may consider the employment relationship terminated at the employee’s initiative, without applying the ordinary formal resignation procedures.
In practice, the rule introduces a legal presumption of resignation, operating automatically once the statutory conditions are met, unless the employee proves the existence of force majeure or an employer-related circumstance that prevented justification of the absence.
The identification of those conditions — and in particular the relevant absence period — has become the central issue of an intense judicial debate.
The “broad” interpretation: Milan and Trento
With judgment No. 4632 of 11 November 2025, the Court of Milan delivered one of the first structured applications of the new discipline, adopting an interpretation favourable to its operability.
According to the Milan court:
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the relevant reference period is primarily the one established by the applicable CCNL, even if originally introduced for disciplinary purposes;
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the statutory fifteen-day period applies only on a subsidiary basis, where no contractual provision exists;
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the disciplinary nature of the collective clause does not prevent its use for tacit resignation purposes, since the legislature intended to rely on the seriousness threshold already identified by the social partners.
Under this view, the new provision does not create a wholly autonomous legal scenario.
Rather, it reinterprets conduct already classified as serious, changing its legal consequences: no longer employer dismissal, but termination attributable to the employee’s will.
The same approach had already been anticipated by the Court of Trento (judgment No. 87/2025 of 5 June 2025) and reaffirmed by a further Milan decision in October 2025, which considered even three days of unjustified absence sufficient where so provided by the applicable CCNL.
The “restrictive” interpretation: Bergamo and Ravenna
A markedly different position emerged in judgment No. 837 of 9 October 2025 issued by the Court of Bergamo, representing a clear departure from the above decisions.
According to the Bergamo court:
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the fifteen-day statutory period constitutes the minimum threshold for the presumption to operate;
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collective bargaining may modify the rule only in melius, by providing a longer period and only where it expressly refers to tacit resignation;
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any analogical use of disciplinary dismissal thresholds is excluded.
Particularly relevant is the court’s clarification that the fifteen days must be counted as working days, not calendar days, since unjustified absence can exist only when work performance is actually due.
A different calculation — the court noted — would lead to unreasonable outcomes, especially in part-time employment relationships or where working schedules are discontinuous.
This approach, consistent with Ministry of Labour Circular No. 6/2025, has recently been endorsed by the Court of Ravenna (judgment of 11 December 2025), which stressed that disciplinary time limits contained in collective agreements are often too short to support an absolute legal presumption of resignation.
An “unstable” legal framework requiring caution
The emerging picture is that of a legal mechanism:
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introduced with legitimate objectives;
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technically imperfect in its construction;
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applied by courts according to non-uniform — and sometimes opposite — criteria.
In this context, the risk for employers is evident.
A careless management of unjustified absences may result in a judicial declaration of ineffectiveness of the termination, with the consequent obligation to pay back wages and social security contributions, in addition to potential compensation claims.
Operational guidance for companies and HR departments
Pending legislative clarification or consistent case law consolidation, a particularly cautious approach is advisable:
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carefully verify whether and how the applicable CCNL expressly regulates resignations by conclusive conduct;
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accurately document the absence and all related communications;
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assess on a case-by-case basis whether to activate the procedure under Article 26(7-bis) of Legislative Decree No. 151/2015 or instead follow the more traditional and consolidated disciplinary procedure for unjustified absence.
Although more burdensome for the employer and potentially enabling the employee to access NASpI, the disciplinary route currently remains the legally safer option, particularly where judicial interpretation of tacit resignation remains uncertain.
The support of Bacciardi Partners
The Employment Law and Industrial Relations Department of Bacciardi Partners assists companies and HR managers in handling unjustified absences and employment terminations, supporting employers in selecting the most coherent, sustainable and defensible strategy in light of a continuously evolving regulatory and judicial framework.
In an area where a single misstep may produce significant consequences, prudence — now more than ever, especially in matters concerning employee absences — represents sound management practice.
Avv. Enzo Bacciardi – Founder & Head of Litigation
Avv. Michele Sacchi – Of Counsel, Labour Law