In ruling no. 1240/2022 of 25 March, the Court of Foggia confirmed the prevailing principle that the burden of proof to demonstrate the contested oral dismissal is on the employee.
In this case, the employee claimed he was orally dismissed on 3 January 2020, stating that he was notified of an “immediate suspension of employment” with an invitation to resign. In the following days, the employee challenged the dismissal and communicated, by certified email, his immediate availability to resume work.
The company objected arguing the employee had arbitrarily left the workplace and was absent without leave. This absence was uncontested by the employee given that the company had waived its right to disciplinary action.
The Court of First Instance, following an in-depth preliminary investigation, rejected the employee’s claim because he had not proved the existence of the contested oral dismissal. Otherwise, according to the judge, it can be concluded that, even in the absence of the formalisation of the resignation, the relationship was terminated by the will of the employee who did not return to the workplace. The Court cited previous cases and stated that the employee who challenges the dismissal based on it not being in writing, must prove that the termination is attributable to the employer’s will since just stopping work is not enough.
Continue reading the full version published on Il Quotidiano del Lavoro of Il Sole 24 Ore.
