Damages Compensation in Public Employment: The Burden of Proof for the Worker According to Order 17367/2025

The world of labor law, and particularly public employment law, is constantly animated by jurisprudential rulings that redefine its contours, offering new interpretations and protections. A significant example in this regard is Order No. 17367, issued on June 27, 2025, by the Court of Cassation, Labor Section. This decision, with Dr. C. M. as rapporteur and drafter and Dr. A. D. P. as president, addresses a matter of fundamental importance: the burden of alleging and proving damages for a worker who experiences a failure or delay in hiring attributable to the Public Administration.

The procedural case saw Mr. D. (C. G.) and Ms. C. pitted against each other, reaching the Court of Cassation after a ruling by the Court of Appeal of Salerno on November 9, 2020, which was quashed and remanded. The Supreme Court seized the opportunity to clarify an often controversial aspect, with direct implications for workers' rights and the responsibilities of Public Administrations.

The Issue at the Heart of the Ruling: Burden of Allegation and Proof

Traditionally, in compensation claims, the plaintiff is required to prove not only the wrongful act or breach of contract but also the damage suffered and the causal link. In the context of contracted public employment, when a worker is not hired or is hired late due to the fault of the Public Administration, the right to compensation arises. But what exactly must the worker allege and prove to obtain such compensation?

The ruling under review intervenes precisely on this point, providing an interpretation that aims to simplify the worker's position, without distorting the general principles on the burden of proof, as referred to in Articles 2697, 2727, and 2729 of the Civil Code. The Court intended to balance the protection of the worker's rights with the need for concrete proof of the prejudice.

In matters of contracted public employment, in cases of failure or delay in hiring attributable to the Public Administration, the worker who brings legal action to obtain compensation for damages is required to allege solely the prejudice consisting of the late or omitted assignment of the position and, therefore, the loss of remuneration that could have been earned, without the need for explicit allegation of the condition of unemployment or employment with lower income, which rather constitute elements of proof of damage, provided that the trial judge, in the presence of a coherent factual framework and a plausible "evidentiary path," exercises the ex officio investigative powers provided for by the procedural code.

This maxim is groundbreaking in its clarity. The Court of Cassation establishes that the worker does not necessarily have to allege that they remained unemployed or earned less than they would have. These facts, in fact, are not constitutive elements of the damage but rather means of proof useful for quantifying it. The core of the compensation claim lies in the "loss of remuneration that could have been earned" due to the late or omitted assignment of the position. This loss, in itself, is the damage. The condition of unemployment or alternative employment with lower income is not an essential requirement for the claim but a circumstance that can be proven to demonstrate the extent of the prejudice.

Implications and Legal References

The decision aligns with a jurisprudential trend that, over the years, has sought to adapt the application of Articles 1218 (Debtor's Liability) and 1223 (Compensation for Damages) of the Civil Code to the specificities of the public employment relationship. The Court of Cassation, referencing previous maxims (such as No. 1492 of 2018, No. 22294 of 2023, and No. 16665 of 2020), consolidates the idea that damage from failure to hire or delay is presumptively linked to the loss of remuneration. This is not damage in re ipsa, but damage whose proof can be facilitated by simple presumptions and the judge's intervention.

A crucial point highlighted by Order 17367/2025 is the role of the trial judge. In the presence of a "coherent factual framework and a plausible evidentiary path," the judge is called upon to exercise their ex officio investigative powers. This means that, even if the worker has not explicitly alleged their condition of unemployment, the judge can and must take action to acquire elements useful for quantifying the damage, for example, by requesting information on the labor market or the applicant's professional position. This strengthens the principle of effective judicial protection, ensuring that a mere formal omission does not preclude the right to compensation.

• The worker must allege the loss of remuneration due to the failure/delay in hiring.
• Explicit allegation of unemployment or lower income is not required.
• These conditions are elements of proof of damage, not requirements of the claim.
• The judge has ex officio investigative powers to quantify the damage.

Conclusions

Order No. 17367 of 2025 represents an important clarification in the landscape of damages compensation in public employment. It streamlines the burden of proof for the worker, focusing attention on the direct economic loss resulting from the failure to assign the position. At the same time, it underscores the importance of the judge's active role in the process of ascertaining and quantifying the damage. For workers, this translates into greater accessibility to compensatory protection, while for Public Administrations, it reaffirms the need for scrupulous adherence to hiring procedures to avoid compensatory liabilities that, in light of this ruling, appear more defined and less avoidable.