Supreme Court: Burden of Proof in Retaliatory Dismissal

1. The facts

   According to reports from Il Sole 24 Ore, the case stems from the challenge of a dismissal for objective justified reasons issued by a company in economic crisis. The worker argued that the corporate reorganization was a mere facade for retaliation linked to previous legal claims. The procedural stage concluded before the Supreme Court after both the Tribunal and the Court of Appeal rejected the employee's argument. The lower courts had indeed established the actual existence of the company's economic difficulties, finding that the dismissal was objectively justified by the need for cost reduction. The Supreme Court upheld this view, dismissing the appeal and ruling that any animosity from the employer is not enough to invalidate the termination if a valid economic reason also exists.

2. Applicable legal framework

   The regulatory framework centers on Article 1345 of the Civil Code, which nullifies a contract concluded exclusively for an unlawful motive common to the parties; this principle applies to dismissal, a unilateral act, via the reference in Article 1324 of the Civil Code. Article 2697 of the Civil Code governs the burden of proof, stating that anyone asserting a right must prove its constitutive facts. Regarding protections, Article 18 of the Workers' Statute (Law 300/1970) and Legislative Decree 23/2015 provide for full reinstatement when a dismissal is null because it is dictated by a decisive unlawful motive, regardless of the company's size.

3. Case law overview

   Supreme Court case law has clarified that retaliatory dismissal is null only if the unlawful motive is the sole determinant of the termination. According to established rulings, if any other lawful cause emerges during proceedings, such as an objective justified reason or just cause, the retaliatory nature is excluded because it can no longer be considered exclusive. The proof of such intent rests entirely on the worker, who cannot merely demonstrate the temporal proximity between their act (such as a complaint) and the dismissal. It is necessary to provide presumptive evidence that allows for the exclusion of any other plausible motivation, making retaliation the only logical and legal explanation for the dismissal.

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8. Professional lessons

   1. Preliminary analysis: the worker's lawyer must rigorously evaluate the solidity of the objective reason cited by the employer before proceeding.
   2. Search for negative proof: it is essential to seek elements demonstrating the non-existence of the crisis or the inconsistency of the reorganization.
   3. Distinction of regimes: one must not confuse the general burden of proof with the facilitated whistleblowing regime, which operates on different tracks.
   4. Defense strategy: for the company, analytical documentation of the crisis is the most effective means to neutralize accusations of vindictive intent.

References: Articolo 1345 Codice CivileArticolo 2697 Codice CivileArticolo 18 Legge 300/1970D.Lgs. 23/2015

Editorial oversight: Avv. Federico Papa·ICAMUpdated 4 October 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction