Dismissal and home medical checks: the burden of proof lies with the employer

The case and the legal background

A company in the chemical and pharmaceutical sector had dismissed one of its employees for just cause, alleging that he could not be found on three occasions when INPS, the national social security institution, sent a doctor to verify his sickness absence. For two of the three visits, the reports recorded the wording "unknown/not traceable at the address".

Both the first-instance Court and, on appeal, the Court of Appeal of Venice annulled the dismissal, ordering the employee's reinstatement and the payment of the compensatory indemnity provided for by Article 18, paragraph 4, of the Workers' Statute. The company challenged that outcome before the Supreme Court of Cassation on four grounds.

The applicable framework brings together several layers. Article 5 of Law no. 604 of 1966 places on the employer the burden of proving just cause or a justified reason for dismissal. Article 2700 of the Civil Code governs the evidential force of a public document. The chemical and pharmaceutical collective agreement, at Article 31, sets out the obligations of an employee on sick leave, while Article 38 lists the conduct that carries conservative sanctions rather than dismissal.

The legal question: an ambiguous report and the burden of proof

The core issue concerns the evidential value of the medical check report and the allocation of the burden of proof in dismissal cases. The entries made by the doctor were equivocal: they could point either to the worker's absence or to the doctor's failure to locate the address. The company argued that those entries proved the employee's conduct and that, to challenge them, he would have had to bring proceedings to have the document declared forged.

The Court therefore addressed three connected questions. To what extent does the medical inspector's report constitute conclusive proof? Who must establish the failure to be traceable when the entries are ambiguous? And how is the sanction selected when the conduct actually proven amounts, at most, to a minor breach?

The decision of the Supreme Court of Cassation and the principle of law

The Court dismissed the appeal in full and held all four grounds to be unfounded.

Interpreting the reports is a matter for the trial court

On the first ground, the Court recalled that the interpretation of a non-normative administrative document, such as a home-visit report, is a finding of fact reserved to the trial court. The Supreme Court of Cassation cannot re-examine it where the reasoning is logical and respects the legal criteria for interpretation. The Venice judges had not stopped at the literal wording: they had read the entries as a whole and in a coordinated manner, as Article 1363 of the Civil Code requires. They gave weight to the note stating that it had been impossible to leave the visit slip, which sits uneasily with the mere absence of the worker, and to the fact that visits on nearby dates had been successful. Reasoning of this kind cannot be reviewed at the level of legitimacy.

The medical check report requires no forgery proceedings

The most significant passage concerns Article 2700 of the Civil Code. The Court clarified that the medical inspector's report enjoys privileged evidential force only for the facts that the public official records as having occurred in his presence or as performed by him. That privileged force does not extend to the assessments or appraisals of the person drawing up the report, nor to statements made by third parties. The entries "unknown/not traceable" amount to an evaluative summary of the outcome of the visit, not to the attestation of a material fact. Challenging their meaning therefore does not require forgery proceedings. From this follows a clear operating rule: if the doctor merely certifies that no one answered at the address, without attesting that the worker was absent, the employee may prove that he was in fact at home.

The burden of proof lies with the employer who dismisses

On the third ground, the Court drew a distinction between two levels that are often confused. The burden of proof placed on the worker in cases of failure to be traceable relates to the right to sickness benefit from INPS, under the rules of Decree-Law no. 463 of 1983. Disciplinary dismissal follows a different rule. Here the alleged fact was the worker's failure to be found, and proving it falls on the employer under Article 5 of Law no. 604 of 1966. Since the entries were ambiguous and the surrounding evidence pointed to the employee's presence, that fact was not established. An employer cannot dismiss by simply invoking a burden of proof that, in disciplinary matters, rests on the employer itself.

Conservative sanctions: the boundary set by the collective agreement

The fourth ground concerned the only episode in which the worker was genuinely absent, on 17 October, because he had undergone physiotherapy without giving prior notice. On this point the Court acknowledged a breach of the duty to inform under Article 31 of the collective agreement. However, in the absence of any repeat offence and of further aggravating factors, that conduct falls among the cases which the same agreement punishes with conservative sanctions, not with dismissal. The trial court may bring the conduct actually established within the contractual clause that provides for a conservative sanction, without that exercise turning into an independent assessment of proportionality. The rationale is plain: the social partners have already graded the seriousness of the breach, and that choice must be respected. The Court referred to its own settled case law and to judgment no. 128 of 2024 of the Constitutional Court, according to which the provision of conservative sanctions alone rules out recourse to dismissal.

Practical implications for companies and employees

The judgment delivers a precise warning to companies. A medical check report with an ambiguous outcome is not enough to justify a dismissal for failure to be traceable. Before proceeding, the employer must verify that the entries unequivocally attest to the worker's absence from home; otherwise, the burden of proving the fact remains entirely on the employer, and the dismissal risks being annulled with reinstatement.

For employees, the decision confirms the ability to demonstrate their presence at home even in the face of an unfavourable report, and to do so without forgery proceedings, where the doctor has not directly attested absence but has merely recorded an equivocal outcome.

At an organisational level, the judgment reaffirms the central role of collective bargaining in grading sanctions. Where the agreement links a given form of conduct to a conservative sanction, the employer cannot turn it into grounds for dismissal. Giving prior notice of leaving home for medical treatment remains an obligation, but any breach must be sanctioned within the limits set by the social partners.