ITA 
Published on Sole24Ore – NT Lavoro – on 14/09/2022.
The way in which the dismissal is communicated cannot be the subject of witness proof, since it is an act for which the written form ad substantiam is required. ad substantiam.
Thus, the Court of cassation with its judgment no. 26532/2022.
The case originates from the dismissal of an executive, which occurred during a meeting to attended by the CEO and two other employees as witnesses. The executive did not contest the dismissal during the meeting, nor the presence of the two colleagues, but denied having received this communication in writing, while the company claimed to have delivered the dismissal letter in its own hands during the meetings, as confirmed by witnesses.
The Court of Appeal, upholding the decision of the Court of First Instance, declared the dismissal ineffective because it was announced orally, as the company had not proved that it had complied with the written form – required ad substantiam – and witness proof on this point (although taken at first instance) was not admissible.
According to the Court, in fact, on the one hand, the way in which the notice of dismissal was communicated cannot be the subject of oral evidence because the testimony would contain within it oral proof of the written existence of an act for which the form is required under penalty of nullity and, on the other hand, the prohibition of oral evidence, established by Article 2725 of the Civil Code, cannot overcome by the exercise of the investigative powers of the employment judge.
The company appealed in cassation, claiming that it had proved, by witnesses, the hand delivery of the written notice of dismissal and contesting the failure of the judges of the merits to exercise their powers of investigation of their own motion aimed at finding the substantial truth, without preclusive formalities.
According to the Supreme Court, the appeal is inadmissible. First, it recalls that, pursuant to Article 2725 of the Civil Code, witness proof of a contract – or of an unilateral act pursuant to Article 1324 of the Civil Code – whose written form is required by law under penalty of nullity is not permitted, subject to the exeptions provided for in Article 2724 of the Civil Code, which are not applicable to the case at hand.
In a different respect, the prohibition of witness proof cannot be overcome on the basis of Article 421 (2) of the Code of Civil Procedure which, in granting the labour judge the power to admit ex officio any means of proof, event outside the limits set by the Civil Code to witness proof, does not refer to the formal requirements (ad substantiam or ad probationem) laid down by law.
Lastly, according to the Court of Cassation, the company’s burden of proof cannot be deemed to have been met by producing at trial a document consisting of a dismissal letter, since it has no certain date of drafting at a time prior to or coeval with the employee’s dismissal, nor can the date referred to by the witnesses be considered, since this would surreptitiously circumvent the prohibition of witness proof.
Consequently, since the contested written notice of dismissal could not be witness proof, the measure is null and void for lack of the form required by law.