Cassation: Burden of proof in dismissal for poor performance

1. The facts

   The case originates from recent rulings reported by publications such as Cassazione.net and Il Sole 24 Ore Lavoro, which analyzed two final procedural stages regarding employer termination. In the first case, a bank employee was dismissed after making only 16 client visits compared to a company average of 120, and the Court of Cassation confirmed the lawfulness of the measure, identifying it as a subjective justified motive due to culpable inertia. In the second case, a transport sector worker was dismissed for numerous sick leaves that had compromised service efficiency; at this Supreme Court stage, however, the judges declared the dismissal unlawful. The Court clarified that poor performance cannot be configured as an objective datum deriving from certified illnesses, but requires a specific negligent violation of diligence duties that the employer must prove analytically.

2. The rules at play

   The reference regulatory framework is structured around three fundamental pillars governing the employee's liability.

   1. Art. 2104 c.c.: defines the diligence required by the nature of the performance, establishing that non-performance lies not in failing to achieve a result, but in failing to apply working capacity according to the average standard.
   2. Art. 3 Law no. 604/1966: introduces the category of subjective justified motive, qualifying poor performance as a notable breach of contractual obligations.
   3. Art. 2697 c.c.: governs the burden of proof, requiring the employer to prove the constitutive facts of the alleged negligence. The consequences of violating these rules entail the annulment of the dismissal and the application of the reinstatement or compensatory remedies provided by the Workers' Statute or the Jobs Act.

3. What case law says

   The Supreme Court's case law has consolidated the principle that poor performance constitutes a category of disciplinary dismissal requiring proof of the worker's fault. Current trends rule out that a simple deviation from commercial targets can justify termination unless accompanied by proof of negligent conduct sustained over an appreciable time frame. The Court specified that the evaluation must be based on objective comparison parameters, verifying whether performance was significantly lower than the productive average of colleagues with equal classification. The principle remains that the obligation of a subordinate worker is an obligation of means; therefore, the business risk linked to failing to achieve economic objectives cannot be transferred to the employee.

5. Analysis drafted and verified with edit.legal

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8. What it teaches professionals

   1. Analytically document every deviation from the company average through periodic reports and homogeneous comparisons.
   2. Timely formalize disciplinary disputes by indicating specific negligent behaviors and not just the production drop.
   3. Always verify that the organizational conditions provided to the worker are such as to make the expected performance objectively enforceable.
   4. Prudently evaluate the adoption of dismissal for poor performance in the presence of external factors or multitasking duties that may justify the decline in results.

References: Art. 2104 c.c.Art. 3 Legge 604/1966Art. 2697 c.c.Art. 18 Statuto dei Lavoratori

Editorial oversight: Avv. Federico Papa·ICAMUpdated 10 September 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