Oral dismissal: who bears the burden of proof?

In its recent Judgment No. 2385 of June 5, 2025, the Court of first instance of  Catania reaffirmed that, in cases challenging the validity of a dismissal allegedly communicated orally, the burden of proof lies with the employee, in accordance with the general principles set out in Article 2697 of the Italian Civil Code. The employee must demonstrate the constitutive fact of the claim – that is, that the termination of the employment relationship was the result of the employer’s intent to dismiss the worker.

The facts of the case

The case examined by the Court of Catania involved a dispute raised by a Healthcare Assistant (i.e. “OSS”) against a social cooperative. The employee claimed to have been dismissed verbally after being accused of mistreating a patient. According to the employee’s account, the cooperative’s legal representative allegedly told him to “leave” without issuing any formal charge, in breach of Article 7 of the Workers’ Statute (Law No. 300/1970).

The employee asked the court to declare the dismissal null and ineffective, to order reinstatement, and to require the company to pay back and future wages and social security contributions.

The employer, though entering the case late, entirely denied the employee’s version of events. It claimed no dismissal had ever occurred – neither verbal nor written – and that the employee had voluntarily walked off the job after a meeting in which his alleged behavior was discussed. The company argued that the employment relationship was still ongoing, noting that no formal notice of termination had been submitted to the relevant authorities.

Thus, the central legal issue before the Court was the burden of proof regarding the oral dismissal.

The Court’s decision

The Court of Catania dismissed the employee’s claim, finding that the alleged oral dismissal was not proven.

The decision is based on Article 2697 of the Italian Civil Code, which places the burden of proof on the party asserting the claim. In this case, the judge stated that the employee must prove not just that the employment ended, but that it was due to the employer’s intent to terminate, either explicitly or through conclusive conduct.

The Court highlighted that merely ceasing work is a “neutral fact with multiple interpretations”, which could stem from dismissal, resignation, or mutual agreement. Citing established case law from the Supreme Court (e.g., Judgments No. 3822/2019, No. 13195/2019, and No. 149/2021), the judge stressed that the employee must prove an “employer’s act consciously aimed at removing the worker from the production environment”.

In this case, the Court found that the employee failed to meet this burden of proof, citing:

1. Ineffective formal questioning: The company’s legal representative denied the facts alleged in the employee’s formal interrogation.
2. Inadmissible witness evidence: The request for testimony was too vague, lacking specific times, places, and persons involved.
3. Lack of proof of conclusive behavior: Allegations like being removed from WhatsApp service chats were unsupported by evidence.

Ultimately, due to this “evidentiary uncertainty”, the Court rejected the claim. Legal costs were fully offset between the parties due to the case’s complexity and the nature of the parties involved.nale ha rigettato la domanda del lavoratore che non era riuscito a dimostrare il fatto costitutivo della sua pretesa, ossia l’estromissione per volontà datoriale. Le spese di lite sono state integralmente compensate tra le parti in ragione della peculiarità della fattispecie e della natura delle parti in causa.