New position on the sharing of the burden of proof and oral dismissal
The worker who challenges the dismissal by alleging that the dismissal was notified without observing the written form has the burden of proving that the termination of the employment relationship depended on the will of the employer, even if manifested with conclusive behaviors, since the proof of mere termination of the work performance is not sufficient in the event that the employer objects to the fact that the worker has resigned and, upon appropriate checks, the proof of evidence is uncertain. The employee's request must therefore be rejected (Supreme Court’s decision No.16013 dated May 18, 2022),
The Supreme Court and statute limitation of employment relationship’s claims
The permanent employment relationship for an indefinite term, as modulated by the effect of law No. 92 of 2012 and of the legislative decree No. 23 of 2015, lacking the conditions of clear predetermination of the termination of the employment relationship and their adequate protection, is not assisted by a stability regime, so that, for all those rights that are not barred by statute of limitation at the time of entry into force of law No. 92 of 2012, the limitation period runs, in accordance with the combined provisions of Articles 2948, n. 4, and 2935 of the Italian Civil Code., from the termination of the employment relationship (Supreme Court’s decision No. 26246 dated September 6, 2022).
Settlement attempt and confession
The settlement attempt prior to law suit under Article 410 of the Italian Code of Civil Procedure is not preordained to reach a settlement. Therefore, the ascertainment of a spontaneous confession requires a rigorous proof of the corresponding will, since it must be assumed that the declarations were made in the context of a conciliatory will (Supreme Court’s decision No. 26528 dated September 8, 2022).
On the notion of retaliatory dismissal
In the hypothesis of a request proposed by the worker who allege the nullity of the dismissal due to its retaliatory nature, the nullity for unlawful reason pursuant to Article 1345 of the Italian Civil Code requires that this be decisive and that the reason given in support of the dismissal is only formal and apparent (Supreme Court’s decision No. 26295 dated September 7, 2022)
Avv. Guido Brocchieri
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