Datore di lavoro

Extension of the fixed-term contract not accepted by the worker. What happen?

The expiry date of the fixed-term contract can be extended for a maximum of four times, in compliance with the duration limit which, with the exception of seasonal activities, is twenty-four months, with regard to relationships between the same employer of work and the worker himself.
Since the contract in question is naturally terminated once its expiry date has been reached, any different decisions, for example the extension or transformation to an indefinite period, must find the agreement of both parties involved, employer and employee.
However, it may happen that the latter does not accept the extension of the contract, refusing to sign the specific extension letter.
In similar situations, the extension has no effect.
In these cases, how should the employer behave? Let's analyze the issue in detail.
Extension of the fixed-term contract not accepted by the worker.
What happen? Cancel the «UniLav» extension communication.
How can I manage the days and hours worked anyway? Beware of the maxi-sanction for undeclared work.
How and when does the relationship end? Cancel the «UniLav» extension communication The «UnificazioneLav» or «UniLav» form is the electronic document through which employers, professionals and other authorized subjects fulfill the obligation to communicate the establishment, extension, transformation or termination of an employment contract and, in general, of any employment relationship attributable to the legal types expressly indicated by the legislation, as well as internships and other similar experiences, for the exact identification of which please refer to the circular notes issued on the subject by the Ministry of Work.
Specifically, the extension communication must be sent «in all cases of employment relationship (subordinate or self-employed) and of internship or other similar experience that extends beyond the initially set deadline, without a transformation of the contract itself having occurred.
» (Ministry of Labor and Social Security, Circular Note of 21 December 2007 number 8371).
The deadline for sending the flow is five days from the event.
In case of non-acceptance by the employee of the extension of the contract, the following hypotheses may occur: The employer has not yet sent the UniLav extension, since it is still within the five-day deadline; The extension UniLav has already been sent through the appropriate regional portal or the competent autonomous province.
In the first case, the company simply does not send any communication of extension of the contract.
On the contrary, if the UniLav communication has been transmitted it is necessary to cancel it.
On this point, the Circular Note of 21 December 2007 establishes that the cancellation of a communication is foreseen: For any reason before the deadline established by law for making the communication has expired; For the non-occurrence of the event covered by the communication (the communication of establishment of the relationship, specifies the Note number 8371/2007 «can be canceled by the expected date of start of the relationship»).
Consequently, given the non-acceptance of the extension by the employee, the second hypothesis of cancellation of the UniLav communication is integrated.
To cancel the electronic flow, it is necessary to identify, using the unique code of the communication, the UniLav to be canceled and "use the cancellation function provided by the application" (Circular Note of 21 December 2007).
read also New legislation on fixed-term contracts: 4 mistakes to avoid How to manage the days and hours worked anyway? In the event that the employee who did not accept the extension has nevertheless carried out hours/days of work, they must in any case be paid.
In these situations it is possible to resort to the institution of the de facto continuation of the relationship, regulated by article 22 of Legislative Decree 15 June 2015 number 81.
The law provides in paragraph 1 that, without prejudice to the maximum duration limits established by the previous article 19 ( 24 months in total between the parties), the fixed-term employment relationship continues «after the expiry of the term initially set or subsequently extended, the employer is required to pay the worker an increase in salary for each day of continuation of the relationship» .
The increase, specifically, is equal to: 20% of the salary, for each day of continuation of the relationship until the tenth following day; At 40% of the salary, for each day beyond the tenth day following the expiry of the contract.
However, the legislation places a ceiling on the de facto continuation of the relationship.
In fact, the second paragraph of article 22 provides that, if the employment relationship "continues beyond the thirtieth day in the case of a contract lasting less than six months, or beyond the fiftieth day in other cases", the transformation of the contract is envisaged for an indefinite period starting from the "expiry of the aforementioned terms".
Beware of the maxi-sanction for undeclared work The Note of the National Labor Inspectorate (INL) of 20 April 2022 number 856 focused, among other things, on the application of the maxi-sanction for undeclared work in the cases of continuation of the fixed-term contract.
In such situations, the maxi-sanction, clarifies the INL, «the maxi-sanction can be applied only after the expiry of the so-called buffer periods (30 days in the case of a contract lasting less than six months or 50 days in other cases)».
Consequently, the periods included «in the 30 or 50 days following the expiry are covered by law by the initial hiring communication and the maxi-sanction can only be applied starting from the 31st or 51st day following the expiry where, evidently, the relationship continued beyond the buffer periods" (INL Note).
Therefore, again the Inspectorate, within the «buffer periods, where the inspection staff ascertains the non-payment of the aforementioned increases, a formal warning may be adopted».
In order for paragraph 2, article 22 (conversion to a permanent contract) to be applicable, it is necessary that «the inspection staff ascertain that there is a de facto continuation of the fixed-term employment relationship.
In other words, upon expiry of the contract the worker must have carried out the work after the expiry of the contract for the entire buffer period and subsequently without any interruption" (INL).
On the contrary, where the interruption of work performance is ascertained, its resumption constitutes a new and distinct employment relationship with respect to which, in the absence of telematic communication made with the "UnificazioneLav" or "UniLav" form, the maxi-sanction will be applicable from the first day of the relevant employment.
However, when regularizing by means of a warning, the provisions of article 21, paragraph 2, of Legislative Decree number 81/2015 must be taken into account according to which, if the worker is rehired on a fixed-term contract within ten days from the date of expiry of a contract lasting up to six months, or twenty days from the expiry date of a contract lasting more than six months, the second relationship becomes permanent.
Therefore, concludes the INL, where the «new irregular relationship began within 10 or 20 days from the expiry date of the previous fixed-term contract, any warning given in relation to irregular workers still employed by the employer must provide exclusively for the stipulation of a permanent contract".
read also Resignation from a fixed-term contract without notice, how can the company protect itself? How and when does the relationship end? On the termination date, in the event that the employee has not accepted the extension, it is advisable to distinguish between: Employee who nevertheless performed the work after the expiry of the deadline; Employee who has not performed work after the deadline expired.
In the first hypothesis, without prejudice to the recognition of the salary increase for the de facto continuation of the relationship, the same is interrupted, due to the expiration of the term, on the last day on which the employee performed the work.
The day in question will therefore coincide with the last day of validity of the contract.
In the second hypothesis, on the contrary, the employment contract is considered terminated upon expiry of the term corresponding to the last day of its validity, previously communicated with the "UnificazioneLav" hiring or extension form.

Author: Hermes A.I.

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