DLP Insights

Waiver of right to appeal against dismissal: right available

Categories: DLP Insights, Case Law | Tag: Dismissal

31 Mar 2022

With its ruling no. 1887 of 21 January 2022, the Court of Cassation stated that the employee might freely dispose of the right to challenge the employment relationship termination by waiving or settling.

Facts of the case

The facts of the case originate from the decision of the relevant local court, which was upheld on appeal, declaring inadmissible the employee’s request to verify the nullity of the term applied to the employment contracts assuming that a settlement had been reached between the parties.

The employee appealed to the Court of Cassation against the Court’s ruling, arguing that the settlement agreement signed was null and void because of the absence of the res litigiosa and the settlement concerned rights that were not available to the parties.

The Supreme Court of Cassation’s ruling

The Court of Cassation upheld the Court’s decision, stating that for the res litigiosa (a necessary element for the settlement validity) to exist, it is unnecessary that the parties’ arguments took the form of a claim and that the existence of a potential disagreement was sufficient, even if needed to be precisely defined as a dispute.

The Court of Cassation stated that the right to challenge an employment relationship termination and the worker’s interest in its continuation falls within the worker’s free choice.

According to the Court of Cassation, settlements on this issue are outside the scope of Art. 2113 of the Italian Civil Code, where only acts waiving the employee rights arising from mandatory legal or collective agreements provisions were considered invalid and challengeable.

On this basis, the Supreme Court dismissed the employee’s appeal. It deemed the inter partes conciliation valid assuming the Law recognised the worker’s right to definitively dispose of their job by negotiation and based on Art.  2118 of the Italian Civil Code.

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