The special aspects of the provisions relating to settlement agreements in labour cases will never be sufficiently emphasised.
The ordinary provisions of law whereby settlements of a dispute must be evidenced in writing, in labour cases are integrated by the provisions of Art. 2113 of the Italian Civil Code, under which settlements having as their object the rights of employees that cannot be derogated from as provided by laws or national collective bargaining agreements, are not valid; the employee has the right to challenge said settlements within six months of their execution.
To this should be added that precedents agree that employees are subject to said time limit, as regards their declarations, only if they have rendered them clearly and being fully aware of the specific rights to which they are entitled and with the conscious intent to abandon them.
This was confirmed recently by the Pretore of Genoa by judgement of 07/03/91 which states "should the reciprocal concessions and waivers of the parties in relation to their respective positions, not be identifiable on the basis of the executed declaration, there will follow the nullity for absolute uncertainty of the alleged settlement".
Thus, declarations obtained from the employee as generally occurs at the time of payments of the termination indemnities due, such as "receives by way of settlements" or "has nothing more to claim in relation to the employment which has been terminated", are not only subject to challenge, but are not even cured by the lapsing of the mentioned six month time limit.
Given this, it appears advisable that an employer, each time he is in the presence of a risk inherent to possible future challenges, should systematically formalise the amicable settlements reached with the employee through the mechanism of conciliation before the Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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