The Supreme Court (Judgment No. 30823/2025) has recently revisited a well-known issue, addressing it from a specific perspective: the allocation of the burden of proof.

This is particularly relevant where the employer argues that the employment relationship ended due to the employee’s resignation. This also takes into account recent legislation recognizing the possibility of voluntary resignation in cases of unjustified absence exceeding 15 days.

In line with established case law, the Court first recalls that it is the employee’s responsibility to prove the constitutive fact of the claim, namely that they were dismissed at the employer’s initiative.

It is not sufficient to prove the mere cessation of work performance, as this is an ambiguous circumstance that may also result from resignation or mutual termination.

A key aspect of the ruling concerns the employer’s defense: if the employer does not merely deny the dismissal but claims that the relationship ended due to resignation, such an argument constitutes a “strict defense”.

Accordingly, the burden of proof lies with the employer, pursuant to Article 2697, paragraph 2, of the Italian Civil Code.

The most innovative aspect, however, concerns situations of evidentiary uncertainty.

The Supreme Court excludes that the employee’s failure to prove dismissal automatically leads to a finding of resignation.

If neither party succeeds in proving its case, the employment relationship must be deemed to still exist, with potential compensatory consequences in favor of the employee.

Subsequent case law has confirmed that the employee’s claim must be dismissed if dismissal is not proven, but this does not automatically imply a different, unproven cause of termination.

Finally, where an oral dismissal is proven, it is ineffective due to lack of form and entails, for employees subject to Legislative Decree No. 23/2015, reinstatement, compensation for damages (with a minimum of five months’ salary), and payment of social security contributions, with the alternative option of a substitute indemnity.

In light of the above, the judgment reinforces a fundamental principle: without proof of a valid terminating act, the employment relationship cannot be considered terminated.

The Law Firm remains available for any further clarification.