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27.052016

Court of Cassation: dismissal and the evidence of the grounds

By way of judgment No. 7558 of 15 April 2016 the Court of Cassation has set forth an important principle on the distribution of the burden of proof on dismissals. The matter flows from a judgment of the Court of Appeal of Milan which, by partially reversing the first instance decision, has declared the dismissal for cause inflicted on a ballet dancer from La Scala unlawful, who had made declarations to an English newspaper and to national newspapers on the ballet dancers’ state of physical and psychological prejudice and on the fact that their career development was subject to non-professional factors. The theatre brought an appeal before the Court of Cassation against such judgment holding that, should the employer prove what falls within the respective scope of control – and, namely, in the case at issue, the fact of giving an interview with declarations detrimental to the employer – the worker must prove the contrary. In rejecting the appeal, the Court of Cassation has clarified that when the employer expedites the dismissal of an employee for having given any such declarations, the employer must prove both the extrinsic fact of the declarations, as shown in the newspapers, and its actual conformity to the words actually said by the employee, such as to prove that the content deemed defamatory may be traced back to the latter.