The Supreme Court clarifies evidence of oral dismissal

With the most recent sentence no. 3822 published on the 8th February 2019, the Supreme Court – Labour Section – ruled on the distribution of the burden of proof in relation to oral dismissal, accepting the complaint of the employer – as a plaintiff – ruling that “the worker who challenges the dismissal by attaching the notice without observing the written form has the burden of proving that the termination of the relationship is attributable to the will of the employer, albeit expressed in conclusive conduct, since it is not sufficient proof of the mere termination of employment; in the event that the employer objects to the resignation of the worker and the outcome of the investigation – to be conducted also through the officious powers under art. 421 c.p.c. – If there is still uncertainty as to the evidence, the worker’s request must be rejected in application of the residual rule pursuant to art. 2697 of the Italian Civil Code”.

In particular, with the second ground of grievance, he complained of the violation and misapplication of art. 2697 c.1 and 2 c.c. for having the Court of Appeal charged to the employer the burden of proving the resignation of the worker, although there was no certain evidence of the oral notice of dismissal, but only of the objective fact of termination of employment.

With such a ruling, the Supreme Court tries to overcome the disharmonies that have given rise to sometimes non-convergent readings of contiguous procedural events.

With regard to the distribution of the burden of proof of dismissal ordered orally, there is, in fact, a first consolidated orientation of the jurisprudence of legitimacy focused on the opposition between “evidence of dismissal”, borne by the worker, and “evidence of resignation” as an exception in the strict sense, belonging to employers, without it being always easy to decipher which of the burden of proof should be given priority in the litigation, or in case of uncertainty. (among others: Cass. 4717 of 2000; 14977 of 2000; 14082 of 2010; 21684 of 2011).

The Supreme Court itself had significant precedents of different opinions, according to which, at the point of sharing the burden of proof regarding a deduced oral dismissal, the evidence on the worker about the “exclusion” from the relationship does not coincide tout court with the fact of “termination of the employment relationship, but with an act by the employer consciously aimed at expelling the worker from the production circuit” (Court of Cassation no. 31501 of 2018; see Court of Cassation no. 6900 of 2016; 15556 of 2016; 22901/2010; 7839/2000; 5427/1999).

The ruling in question expressly endorsed this second guideline, stating that where the dismissal is challenged as oral, in the event that the employer objects to the termination of the relationship as a result of the resignation of the employee, and there remains an uncertainty of proof, the rule of art. 2697 c.c. will apply. Therefore, the worker who has not proved the constituent fact of his application will see it rejected, even if not even the resignation claimed by the employer is proven, in accordance with the principle of the procedure that the burden of proof of the defendant with regard to the exceptions proposed by him arises in practice only when the plaintiff has in turn provided evidence of the facts on which the claim is based. It is therefore clear that the inadequacy of the evidence on the circumstances put forward by the defendant in rebuttal of the adverse claim does not exempt the other party from the burden of adequately demonstrating the merits of the claim itself (see Court of Cassation 1522 of 1983; Court of Cassation 3148 of 1985; Court of Cassation 3099 of 1987; Court of Cassation No. 2680 of 1993: Court of Cassation 5192 of 1998; Court of Cassation 8164 of 2000; Court of Cassation 3642 of 2004; Court of Cassation 13390 of 2007).