The inclusion of a clause in the individual employment contract by which the parties agree to attempt to resolve an individual labor dispute amicably is beneficial; however, practice has shown that certain aspects can negatively influence this conciliation procedure.
This clause can even be ineffective when the parties do not reach an agreement, either prior to initiating the procedure, during its course, or at its conclusion, and the dispute ultimately goes before the court.
First and foremost, we are discussing a clause established by mutual agreement of the parties, not unilaterally by the employee or employer. Secondly, we also consider subjective aspects such as the selection of an external consultant and the fee they will receive.
In other words, such a clause is useful and effective in cases of conflicts between an employee who is aware of their rights and an employer who adheres to the principle of good faith.
The external consultant specialized in labor law in the event of an individual labor conflict must maintain impartiality regardless of the party paying their fee, and they can convince the parties that it is in their interest to act responsibly and in good faith.
It cannot be imposed against the employee, and in cases where such a clause is imposed, even indirectly, to prevent the employee from exercising their rights under the law and subsequently ends up in court, this aspect can be invoked, and the burden of proof in labor disputes lies with the employer.
Although rarely exercised, the right of any person to be assisted by an external consultant specialized in labor law or by a representative of the trade union organization (if a member) when concluding an additional contract/act could eliminate situations in which such clauses are used in violation of the principle of good faith.
In this stage, the employer can present in detail to the person they intend to hire how such a clause will operate, what the four possible situations are, and, last but not least, its purpose.
Also in this stage, the employer can inform the respective person about the right to be assisted to ensure that all rights are respected, even though it is not explicitly required by law, the clarification of this aspect.
Nevertheless, a well-structured and balanced employment contract can significantly contribute to preventing conflicts and promoting a healthy work environment. A conciliation clause in the employment contract can offer an efficient path for resolving insubordination situations, and the implementation of this clause should be accompanied by clear and detailed communication between the parties.
Furthermore, it should be emphasized that a well-defined employment contract can build trust between the employee and the employer. It can clarify the rights and responsibilities of both parties, thus ensuring a framework in which conflicts are avoided. The periodic reevaluation of clauses in the employment contract can contribute to maintaining their relevance and effectiveness in a constantly changing work world.
In conclusion, the inclusion of a conciliation clause in a well-drafted and balanced employment contract can be a valuable solution for managing individual labor conflicts. It not only provides a framework for peacefully resolving misunderstandings but also contributes to promoting a harmonious and productive work environment for both involved parties.
If you would like more information regarding the inclusion of clauses in employment contracts or have questions related to labor law, we are at your disposal for professional legal consultancy services. We provide support in resolving conflicts and understanding complex legal aspects.
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