La composizione stragiudiziale delle controversie di lavoro nella prospettiva di ripristino del rapporto

This study analyses the role that alternative labour disputes resolution mechanisms may play in order to settle the parties’ conflicts and ensure the continuance of the employment relationship. The study starts from the assumption that the employment relationship implies a necessary coexistence between the employer and the employee – considering that it lasts during the time and is not limited to a single one-off activity. Given such close coexistence between the parties, disputes and tense moments – some more serious than others – often arise during the employment relationship; however, such disputes are not usually addressed immediately nor prevented, but, rather, they surface only after the termination of the employment relationship, when there are no more chances to restore the working relationship. However, such disputes could (and should) be solved during the employment relationship with the aim of restoring the working relationship and allowing its continuation; in this way, the dispute would cease to be only considered as a pathological event – that leads to a definitive breakdown or generates discontent and disaffection sentiments in the employee – and, on the contrary, would be an opportunity to strengthen cooperation and intensify trust between the employer and the employee, with a view of restoring the proper function of the employment relationship. The research therefore aims to investigate whether the conciliation procedures currently provided for by our legal system, as well as the specific features of employment law –characterised by the mandatory and binding nature of the provisions of law and by the unavailability of rights – allow the restoration of the employment relationship following a dispute, the prevention of further conflicts between the parties, and also the resolution of those disputes – of minor value or even irrelevant from a strictly legal point of view – which would be unlikely to find protection in legal proceedings. Finally, the study examines the compatibility between the restorative use of alternative labour dispute resolution mechanisms and the nature of employment relations, which are characterised by a traditional mistrust towards the parties involved, as well as by an ideological approach that considers the employer and the employee as one opposed the other.