DLP Insights

In the absence of a res litigiosa (dispute) conciliation statement may be challenged

Categories: DLP Insights, Publications, News, Publications | Tag: Dismissal, Court of Cassation

02 Jan 2023

The Court of Milan, in judgment No 2652 of 11 November 2022, returned to the issue of the appealability of conciliation statements, ruling that in the absence of a res litigiosa (dispute), the minutes cannot be classified as settlement agreements, with the consequent potential ability to challenge the waivers contained therein.

The facts of the case

On the termination of a works contract, the workers employed on the contract were told that, if they wished to continue working for the successor contractor, they would have to sign conciliation minutes at the trade union offices, declaring, under Article 2113, paragraph 4 of the Italian Civil Code, that they no longer had any rights arising under the previous employment relationship.

The workers signed these conciliation minutes, waiving, among other things, claims for a higher classification on the basis of the tasks actually performed and the payment of the corresponding salary differences.

The signatory workers challenged the signed minutes, bringing an action before the employment court to obtain their annulment and, consequently, the ascertainment of the higher contractual classification level and an order against the company to pay the salary differences.

The Court of Milan’s judgment

The Court of Milan, in upholding the challenge brought by the workers, ascertained that the challenged conciliation minutes could not be considered to be a settlement agreement, since the agreements entered into by the parties lacked the essential element of a settlement agreement, i.e., the res litigiosa.

Under Article 1965 of the Italian Civil Code, a settlement is defined as a contract by which the parties, by making mutual concessions, put an end to a dispute that has already begun or prevent a dispute that may arise between them.

A reading of this provision shows, therefore, that the typical basis of the settlement is to resolve or avoid a dispute, with mutual concessions by the disputing parties.

Consequently, the Milan Court, on the basis of these principles also confirmed by the case law of the Italian Court of Cassation (amongst many see: Italian Court of Cassation No 8917/2016), found that, since the so-called res litigiosa did not in any way emerge from the agreements signed by the applicants, such agreements ‘cannot be classified as settlement agreements, but simply as documents regulating the conclusion of the relationship, without any preclusion on the bringing of legal proceedings’.

Altri insights correlati:

Settlement report: challengeable if signed with a union other than the employee’s union

Minutes of the conciliation meeting: voided if the worker has been deceived

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