Burden of proof for verbal dismissal rests with the employee (Il Quotidiano del Lavoro of Il Sole 24 Ore), 21 February 2019 – Alberto De Luca, Raffaele Di Vuolo)

The allocation of the burden of proof in appeals against verbal dismissal is once again in the spotlight. In fact, in judgment 3822 of 8 February 2019, the Court of Cassation reiterated, thus confirming its stance on the matter, that the burden is always on the employee to provide evidence (not always straightforward) of a verbal dismissal challenged, thus to eliminate the risk of the termination of the relationship being ascribed to other manifestations of intentions (resignations or consensual termination of the employment relationship due to conclusive facts).

Therefore, proof of the mere interruption of the employee’s professional services does not, per se, constitute sufficient evidence of the event underlying the claim.

The case in question arises from an appeal brought against the termination of an employment relationship, which the employee claims was due to verbal dismissal, while the employer affirms, conversely, that it was due to the employee resigning.

The court of first instance initially upheld the employee’s appeal, with the decision being confirmed by the Court of Appeal, on the grounds that, since the termination of the relationship was self-evident and undisputed, the employee had effectively satisfied the burden of proof with regards to his removal from the position, also considering that the employer had not provided evidence of the resignation challenged.

Called to express its opinion on the matter, the Court of Cassation found a shortcoming in the arguments of the judges in charge, who had considered the intervening termination of the relationship proven by the employee, and accepted by the parties, to be sufficient grounds to uphold the claim, despite each of the parties affirming that such termination was the result of the will of the other party.

While acknowledging the existence of a more protectionist orientation that sees the worker burdened, in cases of verbal dismissal, only with the requirement to prove the intervening termination of the relationship (Court of Cassation, 10651/2005, 7614/2005, 5918/2005, 22852/2004, 2414/2004), the Court aligned its decision with a more recent approach, but less protective of workers’ rights (31501/2018), whereby, in cases of alleged verbal dismissal, the burden is on the employee to provide evidence of his/her “removal” from the position by the employer – a concept that is more specific than the mere “termination of the employment relationship” and that implies an act on part of the employer, intentionally aimed at removing the employee. This is because the definitive ending of the professional services provided in the context of an employment relationship does not, per se, constitute sufficient evidence of dismissal, since such circumstance may have multiple meanings insofar as it may be the effect of different manifestations of intentions (dismissal, resignation or consensual termination).

The Court concluded with remitting the appealed decision back to the lower court, stating that, if the evidence of the cause of the termination of the relationship was uncertain, the burden of proof requirements set out in article 2697 of the civil code would apply (whereby «a person wishing to assert a right in court shall provide evidence of the circumstances the claim is founded on»); therefore, an employee who has not provided evidence of the circumstances underlying his claim will…

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