Oral dismissal: the burden of proof on the employee

With order no. 4077 of 23 February 2026, the Italian Supreme Court addressed the issue of oral dismissal, holding that an employee challenging the termination of the employment relationship on the grounds that it was communicated without complying with the written form requirement bears the burden of proving, as a constitutive element of the claim, that the termination is attributable to the employer’s will, even if expressed through conduct.

Facts of the case

The dispute originated from a claim brought by an employee who, among other requests, alleged that he had been orally dismissed by his employer. The Court of Paola rejected all the employee’s claims.

On appeal, the Court of Catanzaro, while recognising the existence of an employment relationship for the period from 9 January 2001 to 31 October 2003, expressly rejected the claim relating to the alleged oral dismissal and the related compensation claims.

The Court of Appeal noted that the allegation of oral dismissal was contradicted by the presence in the file of a resignation letter signed by the employee, which had never been challenged, and that no evidence had been provided to demonstrate that the termination of the relationship was attributable to a dismissal decision by the employer. The appellate court referred to the established case law according to which, in cases where there is a conflict between the allegation of dismissal and that of resignation, the judge must carry out a rigorous evidentiary assessment, giving due weight to written documents and to the parties’ conduct.

The decision of the Italian Supreme Court

The Supreme Court, by order of 2 December 2025, dismissed the employee’s incidental appeal concerning the alleged oral dismissal, fully confirming the decision of the Court of Appeal.

The Court reiterated the established principle according to which “an employee who challenges a dismissal on the basis that it was communicated without complying with the written form requirement bears the burden of proving, as a constitutive element of the claim, that the termination of the employment relationship is attributable to the employer’s will, even if expressed through conduct; proof of the mere cessation of work performance is not sufficient. Where the employer argues that the relationship ended due to the employee’s resignation and, following the evidentiary phase – also conducted through the court’s powers under Article 421 of the Italian Code of Civil Procedure – uncertainty remains, the employee’s claim must be dismissed in accordance with the residual rule set out in Article 2697 of the Italian Civil Code”.

In the present case, the Court found that not only had the employee failed to discharge this burden of proof, but there was also evidence to the contrary in the form of a resignation letter signed by the employee and dated 31 October 2003, which had never been contested. This document, already taken into account by the first-instance court, excluded the possibility of classifying the termination as an oral dismissal.

The Court therefore held the employee’s arguments to be unfounded, observing that the decision of the appellate court was consistent with the established case law, according to which the mere cessation of work performance is not sufficient to prove dismissal, it being necessary instead to demonstrate a specific dismissal intent on the part of the employer, even if not expressed in writing. Where a resignation letter has been signed and not challenged, the employee’s claim cannot be upheld.

Conclusions

The ruling confirms that, in cases where the cause of termination of the employment relationship is disputed (oral dismissal or resignation), the burden lies with the employee to prove that the termination is attributable to the employer’s dismissal intent. The mere cessation of work performance is not sufficient, particularly where there is a signed resignation letter that has not been challenged, which constitutes sufficient evidence to exclude dismissal. The decision is in line with the Supreme Court’s case law, which requires a rigorous evidentiary assessment and emphasises the importance of written documents in disputes concerning alleged oral dismissal.