Corporate bankruptcy, now referred to in most new proceedings as judicial liquidation, does not make severance pay or accrued salaries disappear. However, the path to obtaining them changes: the worker no longer turns solely to the employer, but must deal with insolvency proceedings, the bankruptcy trustee, and, if the requirements are met, the Guarantee Fund managed by INPS.
I want to help you understand what separates the recovery of severance pay from that of back wages, when it is necessary to submit the proof of claim application, and why the closure of the company is not enough on its own to apply to the Fund. We will also examine which facts truly affect the process: the open proceeding, the date of termination of the employment relationship, the admitted amount, and any payments already received.
Severance Pay and Back Wages: Two Claims That Do Not Always Follow the Same Rule
Severance pay arises upon the termination of subordinate employment. Article 2120 of the Italian Civil Code recognizes severance pay in every case of termination: dismissal, resignation, expiration of a fixed-term contract, or other cause of dissolution. Its calculation considers the portions accrued during the relationship, the revaluations provided for by law, and, within applicable limits, the relevant remuneration components. The text of the regulation is referenced in Law No. 297 of 1982.
A final payslip alone does not prove the entire severance pay. To understand what remains, the date of hiring, available payslips, remuneration certifications, any advance payments, and partial payments all matter. If part of the accruing severance pay was allocated to supplementary pension schemes, that position must be distinguished from the portion remaining with the employer: these are not sums to be requested indiscriminately under the same item.
Unpaid salaries must be kept separate from severance pay. Back pay, unused vacation days and leave, additional monthly payments, and end-of-service indemnities may all be employment claims, but they have different origins and calculation criteria. In the application to the proceeding, it is useful to indicate each item with the period to which it refers, without summing everything into an indistinct amount. This separation is also decisive because the protection of the Fund for remuneration does not have the same scope provided for severance pay.
First Question: Is There a Judicial Liquidation or Only a Company in Liquidation?
The cessation of business does not automatically equate to established insolvency. A company can close, empty its offices, or stop paying without the court having yet opened a judicial liquidation. It can also be placed into voluntary liquidation, with a liquidator appointed by the company. In this situation, the debtor remains the company, and the mere use of the word "liquidation" does not allow the assumption that the Guarantee Fund is already accessible.
The court order identifies the procedure to follow. If a judicial liquidation has been opened, the trustee's notice indicates the case number, the court, the hearing for the examination of liabilities, and the certified email address for communications. The Crisis and Insolvency Code governs the determination of claims in judicial liquidation under Articles 200 and following; the coordinated text of the code can be consulted on Normattiva.
The word "bankruptcy" may still appear in documents. Many proceedings initiated under the previous bankruptcy law retain their designation and transitional rules. It is not useful to decide the path based solely on the terminology used in a letter from the former employer. What matters instead is the order actually issued, the person appointed for the procedure, and the instructions received by the worker.
The Proof of Claim: How the Debt Enters the Proceeding
To participate in the proceeding, one must request the admission of the claim. The proof of claim is the application by which the worker requests that the severance pay and other sums owed be ascertained among the liabilities of the judicial liquidation. It is not a generic reminder to the trustee: it must connect a precise sum to the employment relationship, explain the facts from which the claim arises, and indicate the documents supporting it.
The ordinary deadline depends on the hearing scheduled for verification. Article 201 of the Crisis Code links the timely application to a deadline of at least thirty days before the hearing scheduled for the examination of the liabilities. For this reason, the important date is not the one on which you informally discovered the closure of the business, but the one reported in the notice of the proceeding. An application filed after the ordinary deadline is not equivalent to a timely application and follows the rules for late applications.
The application must distinguish the claim and priority. Priority, often referred to as privilege, indicates the preference recognized by law to certain claims in the order of payments. For employment claims, it is not enough to indicate a final figure; the request for the applicable ranking must be formulated correctly. Admission with privilege does not ensure that there are sufficient assets for full payment, but it prevents the claim from being treated as an unsecured debt due to an avoidable deficiency in the application.
What Changes If the Trustee Contests the Amount
The liabilities statement may admit, reduce, or exclude the claim. The trustee may contest, for example, the duration of the relationship, the calculation of severance pay, a monthly payment already made, or the existence of a particular remuneration item. The amount indicated by the worker does not become due simply because it was requested. It is necessary to read the draft and the order that makes the liabilities statement enforceable, because the claim ascertained in the proceeding constitutes the central data also for the subsequent relationship with the Fund.
Guarantee Fund: When Severance Pay Can Be Paid
The Fund intervenes against the employer's insolvency, not against every delay. Article 2 of Law No. 297 of 1982 establishes the Guarantee Fund at INPS with the purpose of substituting the insolvent employer in the payment of severance pay. Therefore, it is not an automatic advance obtainable as soon as the company interrupts payments. In judicial liquidation, the claim must normally first be ascertained in the liabilities statement or defined according to the acts of the proceeding.
The application to the Fund concerns the actual residual claim. Sums already paid by the employer, received during the proceeding, or withheld as an advance cannot be requested a second time. Admitted severance pay and accessories must be compared with bank transfers, payslips, and other payments. The documentation of the proceeding serves precisely to prove not only the existence of the relationship, but also the extent of the claim that remains unpaid.
Late application does not always exclude the Fund, but it changes the step to be taken. If the claim is admitted late, the worker cannot treat the situation as if they had already obtained a timely verification. The law on the Fund also contemplates the hypothesis of late admission: what matters is the order with which the claim is admitted or with which any contestation is defined. Therefore, it is not advisable to waive the claim just because the first deadline indicated by the trustee has passed.
Unpaid Salaries: Public Guarantee Is Limited in Time
The Fund does not automatically cover all salary arrears. Legislative Decree No. 80 of 1992 extends the protection of the Fund to employment claims other than severance pay, but limits them to the last three months of the relationship included in the twelve-month window established by Article 2. The current text of the provision is available in Article 2 of Legislative Decree No. 80 of 1992.
The claim admitted to liabilities may be broader than the Fund's payout. If many monthly payments remain unpaid, all of them can be asserted in the proceeding, to the extent they are due and proven. The Fund, on the other hand, does not replace the employer for the entire period of arrears simply because the company is insolvent. This difference avoids a frequent misunderstanding: the admission of six months of salaries does not mean, by itself, that the Fund must pay all six monthly payments.
The termination date can modify the relevant salary window. If the relationship continues after the opening of the proceeding, or if the business continues temporarily, the useful date to identify the three guaranteed months may not coincide with that of the opening of the judicial liquidation. For this reason, one must not assume that the physical closure of a sales point has already terminated the relationship: the communication received, the position taken by the trustee, and the legally relevant date of termination are required.
If There Is No Insolvency Proceeding, Recovery Follows Another Path
Voluntary liquidation does not replace the proof of claim. When the company is in voluntary liquidation, the worker can ask the sums owed from the company, represented by the liquidator, but there is no liability statement to enter into for this sole reason. Before thinking about the Fund, it must be verified whether insolvency proceedings have been opened or whether the employer is among the subjects not subject to it.
For an employer not subject to the procedure, fruitless enforcement is relevant. The law provides that the worker can ask the Fund for severance pay when, after having attempted forced execution to recover it, the employer's asset guarantees prove wholly or partially insufficient. The same criterion operates, in its own terms, also for salary claims guaranteed by Legislative Decree No. 80 of 1992. Therefore, a declaration by the former employer stating that they have no money is not enough.
An orderly framework of dates avoids inconsistent requests. To address the first step, it is useful to collect in a single schedule the date of hiring, that of termination, the unpaid months, the advances received, and the communications of the proceeding. To this are added payslips, the contract or hiring letters, any dismissal or resignation acts, and the trustee's notice. It is not necessary to have every document immediately, but it is important not to confuse sums already paid, severance pay, and back wages.
Frequently Asked Questions
Can I apply to the Guarantee Fund without filing a proof of claim?
As a rule, no, if a judicial liquidation exists. The admission of the claim in the liabilities statement is normally the step that ascertains the existence and amount of unpaid severance pay and salaries. If the employer is not subject to insolvency proceedings, the path is different: it must be proven that forced execution to recover the claim found insufficient asset guarantees.
Does the Fund pay all back wages?
No, salary coverage has a time limit. The Fund can also intervene for claims other than severance pay, but the law refers to the last three months of the relationship included in the twelve months preceding the events indicated by Article 2 of Legislative Decree No. 80 of 1992. Additional monthly payments remain claims to be asserted in the proceeding.
Can I recover severance pay if I resigned before bankruptcy?
Yes, resignation does not eliminate accrued severance pay. If the relationship ended and the compensation was not paid, the claim can be asserted in the subsequently opened proceeding. However, the termination date remains important for salaries, because it helps identify the time window within which the Fund's guarantee can operate.
What happens if I submit the application beyond the deadline indicated by the trustee?
It is incorrect to consider the claim automatically lost. The Crisis Code regulates late applications with its own rules, different from timely applications. The concrete possibility depends on the moment of the proceeding, the filing of the liabilities statement, and, in more advanced delays, also on the reason for the delay. A generic PEC email does not replace a complete proof of claim application.
Do I have to subtract advance payments received from the company?
Yes, only the real remainder must be requested. Bank transfers, advances on severance pay, and partial payments must be indicated, because neither the proceeding nor the Fund can pay the same sum twice. If it is not clear to which item a payment was attributed, the reason, payslip, and date of payment help establish whether it reduces severance pay or back wages.
Navigating Between Procedure and Fund
The sequence is more important than the name used for the company crisis. First, it is identified whether there is an insolvency proceeding, then the claim is ascertained in the liabilities when necessary, and finally the application to the Fund for the effectively guaranteed items is evaluated. Severance pay, remuneration, and other termination claims can coexist in the same affair, but they do not always have the same prerequisite or the same protection.
A near deadline deserves immediate attention. If you have received a trustee's notice, a draft liabilities statement, or an order reducing the requested claim, you can contact me to understand which step is still practicable and which amount actually needs to be asserted.