Oral dismissal: the central role of proving the employer’s intention to terminate (Modulo 24 Contenzioso Lavoro, 8 September 2025 – Vittorio De Luca, Alessandra Zilla)

In the absence of proof of the employer’s intention to terminate, a claim of ineffectiveness of an oral dismissal must be rejected

The Court of Catania, in its recent judgment no. 2385 of 5 June 2025, reiterated that a claim challenging a dismissal, where the ineffectiveness of the measure is alleged on the grounds that it was communicated orally, places on the employee—pursuant to the general principles set out in Article 2697 of the Italian Civil Code—the burden of proving the constitutive fact of the claim, namely that the termination of the employment relationship is attributable to the employer’s intention to remove the worker.

This ruling aligns with a now well-established line of case law, reaffirming with clarity the governing principles and offering a rigorous application of evidentiary rules.

The burden of proof regarding the employer’s intention to dismiss the employee

As is well known, individual dismissal is a unilateral and receptive act subject to a mandatory form requirement: under penalty of ineffectiveness, it must be communicated in writing.

This fundamental principle is unequivocally set out in Article 2 of Law No. 604 of 15 July 1966, which states that “the employer, whether or not an entrepreneur, must notify the employee of the dismissal in writing.”

Written form is required ad substantiam, meaning as an essential requirement for the validity of the termination itself. Its absence results in the most severe legal consequence: the ineffectiveness of the dismissal, as expressly provided for in the third paragraph of the same article.

This means that a dismissal communicated only verbally is considered tamquam non esset—as if it had never occurred—and is therefore entirely incapable of producing the terminating effect on the employment relationship.

The rationale underlying this mandatory rule lies in the need to ensure certainty in legal relationships, to enable the employee to mount a full and informed defense through judicial challenge, and to guarantee that the employer’s decision to terminate is formalized in a clear and permanent manner.

While the substantive legal provision is clear, its practical application raises a crucial procedural issue when the employee turns to the court claiming to have been excluded from the workplace following nothing more than an oral communication.

In this scenario, resolution of the dispute shifts to the evidentiary level, governed by the general rule set out in Article 2697 of the Italian Civil Code, according to which “the party who wishes to assert a right in court must prove the facts on which the claim is based.”

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