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Manager: dismissal, notice and demotion.
This article discusses the role of a company manager and his rights by analyzing:
1- duties of the company manager and non-recognition of qualifications;
2 – notice of dismissal from the employer;
3- dismissal of a manager;
4- demotion of a manager.
Who is a manager?
The manager is the representative of the entrepreneur and is responsible for managing the entire organization of the company, its branch or individual sector. To recognize the relevant qualifications, it is important that the employee actually has a number of powers that, thanks to their breadth and initiative, allow and focus on the general management of the company or production. In other words, the manager has a high level of responsibility, as a result of the management that has just been described, and is subject only to the employer’s directives”.
This determination was stabilized in a decision of the Court of Cassation n. 11218 dated October 7, 1999.
A manager differs from an employee with managerial functions because an employee with managerial functions is responsible for a separate branch, office or department and carries out its activities under the supervision of an entrepreneur or manager, has limited powers and, accordingly, limited liability. An employee with managerial functions is also referred to in the literature as a “pseudo-manager”.
The manager, on the other hand, does not have hierarchical relationships with other employees, but only with the entrepreneur.
It is possible that the manager should coordinate his activities with the activities of other managers, but not obey them.
In order to recognize managerial responsibility, it is not necessary to sign special agreements, since it is necessary and sufficient to demonstrate the actual implementation of the relevant tasks, characterized by a predisposition to one or more tasks with wide autonomy of decision-making (Cass. 16/9/2015, No. 18165; Cass. 03.10 .2010, No. 5809).
Confirmation of the manager’s position has an important impact on the rights of the employee: the minimum wage, the right to pay overtime, the norms of notification of dismissal, protection for dismissal.
Confirmation of the manager’s position is not necessarily connected with the expansion of his rights and protection, for example, managers do not have working hours stipulated by law and a collective agreement, since they have the ability to freely regulate work and rest.
Incorrect withdrawal of qualifications or their non-recognition by the employer are the rights of the employee, which may be changed during or after the employment relationship.
Dismissal notice
Dismissal notice is the period between the notice of termination of employment and the actual time of termination of employment.
During this period, the manager must continue to work and the employer must pay wages.
If the termination of the relationship after the dismissal does not comply with the rules, the manager has the right for compensation for not being notified, which represents a reward for a non-working period.
The length of the period of notice of dismissal depends on the applicable collective agreement and the manager’s work experience.
Here are some examples:
MANAGERS OF INDUSTRIAL SECTORS | |
| Dismissal of an employee | Employee resignation |
| 6 months with work experience up to 6 years | 1/3 of that foreseen for the dismissal |
| 8 months with work experience from 6 to 10 years | |
| 10 months with work experience from 10 to 15 years | |
| 12 months with work experience more than 15 years | |
MANAGERS OF OTHER SECTORS | |
| Dismissal of an employee | Employee resignation |
| 6 months with work experience up to 4 years | 2 months with work experience up to 2 years |
| 8 months with work experience from 4 to 8 years | 3 months with work experience from 2 to 5 years |
| 10 months with work experience from 8 to 12 years | 4 months with work experience more than 5 years |
| 12 months with work experience more than 12 years | |
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Dismissal of the manager and protection
The dismissal of a manager is not protected by the same rules as other employees.
Decision No. 121/1972 of the Constitutional Court confirms the legality of this: “The manager’s labor relations have special characteristics that replace the activities that an entrepreneur would have carried out if he had directly taken over the management of the company, which would turn the manager into a representative of the entrepreneur in the exercise of managerial power.”
The law provides for managers dismissal of “Ad Nutum” type, which means free.
Collective agreements provide for managers:
– the obligation to indicate the reasons and procedure for dismissal;
– notice and financial compensation.
The economic compensations for managers are large, as they compensate for the quite free way of dismissal.
Correct negotiations on the payment of compensation for the dismissal of the manager focus not only on the amount of compensation for dismissal, but also include a detailed study of what happened during the employment relationship.
To learn more, click here.
Thorough negotiations on the payment of compensation upon termination require knowledge of tax systems that affect the amount and act in a way to maximize it.
If you want to know more about the decision of the Court of Cassation on this issue, click here.
Demotion, what to do?
The demotion of a manager after changing the internal structure of the company, unfortunately, is widespread (especially in the banking industry). Connecting between companies leads to duplication of functions or changes in management.
Managers with high experience in the company may be appointed to less responsible positions or deprived of any activity.
This deprives the manager of his professionalism and causes moral and material damage.
An employer’s goal is often to force a manager to resign.
Some companies use this method systematically, even having “offices” for demotion of managers. The system consists in the fact that the manager’s title remains high, but the work that he must do is specifically canceled, which leads to complete inactivity.
There were even cases when the manager did not even have guaranteed access to a working PC for a stable Internet connection.
It is important to clarify that demotion is contrary to Article 2103 of the Civil Code, and therefore illegal.
The protection that our system provides is compensatory in nature: the employer must compensate the moral and professional damage to the manager caused by his behavior.
Namely, some difficulties in considering the demotion:
1- evidence of demotion;
2- quantitative assessment of compensation.
If you want to know more about the decision of the Court of Cassation on this issue, click here.
If you need clarification, please contact Bonato Law Firm.
