With the judgment under discussion, the Court of Cassation confirms the rule that, in presumptive evidence, the onus of proof is on the plaintiff to provide evidence of everything that constitutes the fact.
Court of Cassation, Order No. 23144 of October 22, 2020
The case originates from the appeal of an employee (with duties of giving expert legal opinions to the business) who complained of demotion, having been assigned to managing administrative tasks, in the context of a secondment.
The Court of Turin upheld the claim, ordering the Company to pay the worker € 15,000 in damages.
The Court of Appeal of Turin overturned the ruling, rejected the claims made in first instance, noting the plaintiff’s failure to make any allegations or deductions of any specific factual circumstances that demonstrated the existence of non-pecuniary damages as a result of the demotion suffered.
In particular, the Court of Appeal underlined the principle, according to which it was incumbent on the employee not only to allege the demotion, but also to provide proof, pursuant to article 2697 of the Civil Code, of the non-pecuniary damages and the causal link with the employer’s breach.
The Court of Cassation upheld the ruling of the Court of Appeal, pointing out that the damage caused by demotion and professional de-qualification cannot be recognized simply with the employer’s default and is not an automatic consequence of any illegitimate conduct falling within the above-mentioned category.
Accordingly, “it is not sufficient to demonstrate the mere damaging potential of the employer’s conduct, it is incumbent on the employee not only to allege the demotion, but also to provide evidence under Article 2697 of the Civil Code, the non-economic damage and the causal link with the employer’s failure”.
The Court of Appeal goes on to say that “the basic fact is that the injury is different from the breach, even if the first can be deduced through the evidence, provided that it is integrated by elements that concretely and not abstractly describe the duration of the demotion, known inside and outside the work place, frustration of expectations of professional progression, reflected in the habits of the person, etc.”.
The Supreme Court remind us that the injured party has the burden of providing evidence of everything that may constitute the fact-base and precisely this unchanging burden is what constitutes the distinctive feature of damages arising from an event, from damages in re ipsa, since for the latter, the evidence stops at the breach of the right, whereas in the former, it extends to additional circumstances, albeit close to the event: “the known fact of itself cannot be the injustice, but, at least, the circumstantial injustice, in the particular context. This does not detract from the fact that excessive prudence by the judge in using the presumptive evidence may lead to gaps in the right to damages (see Cass. 23.9.2016 no. 18717)”.
By virtue of all the above, the Court of Cassation rejected the worker’s appeal, thus upholding the judgment of the Court of Appeal.