In the absence of proof of the employer’s intention to terminate, a claim of ineffectiveness of an oral dismissal must be rejected
The Court of Catania, in its recent judgment no. 2385 of 5 June 2025, reiterated that a claim challenging a dismissal, where the ineffectiveness of the measure is alleged on the grounds that it was communicated orally, places on the employee—pursuant to the general principles set out in Article 2697 of the Italian Civil Code—the burden of proving the constitutive fact of the claim, namely that the termination of the employment relationship is attributable to the employer’s intention to remove the worker.
This ruling aligns with a now well-established line of case law, reaffirming with clarity the governing principles and offering a rigorous application of evidentiary rules.
As is well known, individual dismissal is a unilateral and receptive act subject to a mandatory form requirement: under penalty of ineffectiveness, it must be communicated in writing.
This fundamental principle is unequivocally set out in Article 2 of Law No. 604 of 15 July 1966, which states that “the employer, whether or not an entrepreneur, must notify the employee of the dismissal in writing.”
Written form is required ad substantiam, meaning as an essential requirement for the validity of the termination itself. Its absence results in the most severe legal consequence: the ineffectiveness of the dismissal, as expressly provided for in the third paragraph of the same article.
This means that a dismissal communicated only verbally is considered tamquam non esset—as if it had never occurred—and is therefore entirely incapable of producing the terminating effect on the employment relationship.
The rationale underlying this mandatory rule lies in the need to ensure certainty in legal relationships, to enable the employee to mount a full and informed defense through judicial challenge, and to guarantee that the employer’s decision to terminate is formalized in a clear and permanent manner.
While the substantive legal provision is clear, its practical application raises a crucial procedural issue when the employee turns to the court claiming to have been excluded from the workplace following nothing more than an oral communication.
In this scenario, resolution of the dispute shifts to the evidentiary level, governed by the general rule set out in Article 2697 of the Italian Civil Code, according to which “the party who wishes to assert a right in court must prove the facts on which the claim is based.”
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Reflections in light of current events on workplace relationships
At a time when companies promote workplace well-being, diversity, and work-life balance, one issue often remains in the background—rarely spoken about, yet strongly felt: romantic relationships in the workplace.
This is anything but an easy matter to address, as it touches on sensitive aspects of employment law: the personal freedom of each individual clashing with the risk of conflicts of interest, while also involving the management of workplace climate and the employer’s responsibilities. A complex web, difficult to untangle—especially from a strictly legal standpoint.
Recent events have also brought the topic of workplace relationships to the forefront of public debate. Consider, for example, the so-called “ColdplayGate” case, where the kiss cam spotlight made viral the relationship (and alleged infidelity) of the then-CEO of Astronomer and the company’s HR manager. Or, more recently, the case of the now former CEO of Nestlé, who was dismissed by the company’s management for engaging in an “undisclosed relationship” with an employee, in breach of the corporate code of conduct and the group’s internal guidelines.
In any case, the point is clear: employment law and case law do not sanction personal feelings; rather, they aim to safeguard corporate organization, the principle of non-discrimination (between employees treated differently for relational reasons), and managerial transparency.
Indeed, a dismissal based solely on the mere existence of a romantic relationship between colleagues, or on its non-disclosure, would in all likelihood be deemed unlawful as a violation of the employee’s right to privacy.
However, dismissal may be considered legitimate if the employer can demonstrate that such a relationship has concretely and objectively created a conflict of interest or resulted in a breach of the duties of loyalty, fairness, and diligence, thereby irreparably undermining the bond of trust. The burden of proof for such circumstances, in any case, rests entirely with the employer.
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Checks must always be carried out in full compliance with the employee’s privacy and dignity.
The use of private investigation agencies can be a potentially very effective tool for companies, allowing them to identify unlawful conduct by their employees, such as the improper use of leave under Law 104/92. However, it is essential to strike a balance between the employer’s need to protect corporate interests and, on the other hand, the employee’s right to dignity and privacy. When resorting to this type of solution, any form of invasive or indiscriminate surveillance must be avoided.”
Furthermore, case law has reiterated that the use of private investigation agencies must be justified by concrete reasons. In fact, an investigation is deemed legitimate only when the employer has well-founded suspicions of an improper use of leave by the employee.
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In its Order No. 16358 of June 17, 2025, the Italian Supreme Court addressed the topic of dismissal for just cause, clarifying the distribution of the burden of proof and the appropriate approach that courts must adopt when the dismissal is based on multiple charges.
The case involved a disciplinary dismissal imposed by a symphony foundation (the “Foundation”) on a lyric singer during her sick leave. The employee was subject to two charges: first, leaving her residence during hours of medical availability, and second, engaging in various activities (such as dining out with her partner, shopping, and singing at religious events) despite her certified illness.
The Naples Tribunal rejected the employee’s appeal at both summary and full opposition stages (under the “Fornero Procedure”), upholding the legitimacy of the dismissal. The Naples Court of Appeal reversed the decision, ruling the dismissal unlawful and ordering the employee’s reinstatement along with eight months’ wage compensation.
The appellate court focused primarily on one of the charges, considering the singing activity during sick leave to be minor, occasional, and not amounting to professional work. Based on that, the court held that the alleged misconduct was unfounded.
The Foundation filed an appeal with the Supreme Court, arguing that the appellate court failed to assess the second, independent charge.
The Supreme Court upheld the Foundation’s claim on this point, overturning the ruling and remanding the case to a different panel of the Naples Court of Appeal for a new judgment.
The Court criticized the lower court for basing its decision solely on one charge. It reiterated the principle that, in cases of dismissal for just cause based on multiple allegations, each allegation may independently justify the sanction unless it is proven that only the cumulative effect of all the charges would warrant termination.
According to this principle, the employer need not prove that the dismissal depends on the totality of conduct, whereas the burden shifts to the employee to show that none of the charges, taken individually, would be serious enough to justify termination. The appellate court failed to consider this and omitted evaluation of one of the charges, thereby violating this principle.
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In Provision No. 288 of May 21, 2025, the Italian Data Protection Authority fined an Italian company €420,000 for unlawful processing of an employee’s personal data later used to justify her dismissal.
The employee filed a complaint against the company, alleging improper use of her personal data extracted from her “Facebook” profile, the “Messenger” app, and certain chats from the “WhatsApp” platform. These data, made known to the company, were used to support two separate disciplinary notices.
In the first notice, dated February 16, 2024, the company quoted the contents of some comments made by the complainant on her Facebook profile, including quoted excerpts and descriptions of certain photos. In the second notice, dated March 21, 2024, it referred to a conversation on Messenger between the complainant and a third party (not employed by the company) who forwarded the conversation to the company via WhatsApp, including quoted excerpts. This second notice also included excerpts from a WhatsApp message the complainant sent to some colleagues on February 22, 2024.
Referring to Article 8 of Law No. 300/1970 (the Italian Workers’ Statute), which prohibits the employer from carrying out investigations – including via third parties – into an employee’s political, religious, or trade union opinions, as well as facts irrelevant to assessing the employee’s professional aptitude, the company claimed it had played no active role in collecting the data. It argued that the information had been reported to it and could therefore be used for disciplinary purposes, as this would not constitute a prohibited investigation under the Workers’ Statute.
The Italian Data Protection Authority used the occasion to recall that:
– The legal system protects the freedom and confidentiality of communications, recognized as fundamental rights, and any limitation is allowed only “by reasoned decision of the judicial authority, in accordance with the law” (Article 15 of the Constitution). This presumption of confidentiality, as clarified by the Constitutional Court, extends to all communication tools made available by technological evolution. (Lawfulness principle)
– The mere publication of data on publicly accessible platforms, such as social networks, does not imply that the data subject has given general consent for the free use of that data for any purpose. A specific legal basis is required for any processing other than the original purpose. (Purpose limitation principle)
– The need for data processing based on legitimate interest – the justification cited by the company in its defense – must also be evaluated under the principle of minimization. The data controller must verify that “the legitimate interest pursued cannot reasonably be achieved through less harmful means for the fundamental rights of data subjects, particularly their right to privacy”. In this case, the company failed to demonstrate that it had assessed the impact of the processing on the employee’s rights or considered less intrusive alternatives, even though the disciplinary measures could have been based on other elements. (Data minimization principle)
The Authority clarified that while it is not tasked with evaluating the disciplinary facts themselves, it is the employer – as the data controller – who must assess not only the lawfulness but also the adequacy, relevance, and proportionality of the data processing to be carried out. The Authority found numerous violations by the company, which, “once it became aware that the transmitted data concerned private communications and comments on a closed Facebook profile, […] should have refrained from using them.”
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