The mere final cessation in the performance of the services arising from the employment relationship is not in itself suitable to provide evidence of dismissal, since it can be the outcome of both a dismissal, resignation and a consensual termination
Court of Cassation, Employment Section, Judgement no. 149 of January 8, 2021
With the case under discussion, the Supreme Court revisits the issue of the burden of proof in the event of an oral dismissal.
The employee complained of having been dismissed orally months before the actual formal dismissal took place.
The Court of Appeal rejected – just as the court of first instance had – the employee’s claim, as he had not provided proof of the alleged previous oral termination.
The employee went on to appeal to the Supreme Court, claiming that “the judges of the appeal violated art. 2697 of the Civil Code on the allocation of the burden of proof in relation to the challenge of a dismissal done without written notice, the onus being on the employer to prove the requirement of the written form of dismissal, the only burden on the employee is to show termination of the relationship. For the appellant, the conclusion of the Court of Appeal would “burden the employee with a probatio diabolica”.
With the judgment in question the Court of Cassation, citing its own precedents on the subject (Cass. 31501/2018 and most recently, Cass. 16.5.2019 no. 13195 and Cass. 8.2.2019 no. 3822), rejected the appeal and upheld the decision of the lower court.
The Supreme Court reminds us that “the mere final cessation in the execution of the services arising from the employment relationship is not in itself adequate proof of dismissal, since it is a factual circumstance of various meanings, as it can be the effect of both a dismissal, resignation and consensual termination”.
This termination is not equivalent, continues the Supreme Court, to “eject”, a word often used in the precedents cited by the same Court of Cassation and which is attributed a legal definition, absorbing it in the legal concept of “dismissal”, in the sense of removal from employment as an effect of the employer exercising it’s power of withdrawal and terminating the relationship.
The ascertained cessation in the performance of services can, in fact, “only constitute factual circumstances in relation to which, together with other elements, the judge of first instance can root the conviction, adequately motivated, that the employee has fulfilled the burden of proof on him about the intervening termination of the employment relationship by the employer (see in these terms Cass. 13195/2019)”.
And so, continues the judgment in question, the burden of proof of the defendant “with regard to the exceptions proposed by him arises in practice only when the plaintiff has in turn provided evidence of the facts underlying the claim, so that the insufficiency (or even the lack) of evidence around the circumstances deduced by the defendant in rebuttal of the adverse claim does not relieve the other party from the burden of adequately demonstrating the merits of the claim itself”. All of this, without considering that in the case in point, the Court of Cassation notes, the employer had submitted evidence of having served the dismissal with a letter of November 2007 and denied the existence of a previous termination of employment.