International Labor & Employment Law Committee Newsletter

Issue: November 2013

Editor: Ute Krudewagen | Africa and Middle East Editor: Karen Seigel | Asia and Oceania Editor: Jason Noakes | Canada Editor: Gilles Touchette | European Editor: Paul Callaghan | Latin America Editor: Juan Carlos Varela | Law Student Editor: Liam Wood, Earle Mack School of Law at Drexel University | USA: Trent Sutton

France

Termination by Mutual Agreement Signed with an Employee on Long-Term Sick Leave Valid Even When a Dispute Exists between the Parties

Océane Demoulin, JeantetAssociés, Paris, France

Signing a termination by mutual agreement with an employee on sick leave is valid as long as the employee's consent was free and informed, the French Supreme Court held in a ruling rendered on 30th September 2013.1

In the case referred to the Supreme Court, an employee who was on sick leave for eight months had signed with his employer an amicable termination by mutual agreement. After the approval of the termination by the Labor Administration, the employee challenged it and asked for damages. The employee claimed that his consent to the termination was not free and informed because he was on sick leave as a result of moral harassment by his employer and because a dispute existed between the parties.

The Supreme Court dismissed the employee's claim on the ground that the latter did not prove the alleged harassment and his consent was free and informed at the time of the signature of the termination agreement. Furthermore, the Court held that the existence of a dispute between the parties does not affect the validity of the termination by mutual agreement.

This decision confirms the recent position of the French Supreme Court which ruled for the first time, on 23th May 2013, that the existence of a dispute between the parties at the time of the signature of the termination by mutual agreement does not in itself affect the validity of the termination.

What is new is that the French Supreme Court authorizes the signature of termination by mutual agreement with an employee on sick leave. The Court also outlined, however, that there was no evidence of moral harassment, meaning that the ruling would presumably have been different if the sick leave had been related to work.

1French Supreme Court, social section, 30th September, 2013, n°12-19.711

Employee Cannot Base Constructive Dismissal Claims on Facts not Known to Him at the Time of Constructive Dismissal

Océane Demoulin, JeantetAssociés, Paris, France

An employee cannot base a claim for constructive dismissal on alleged facts that the employee had become aware of after the date of his alleged constructive dismissal, the French Supreme Court held in a decision rendered on 9th October 2013.1

In the case referred to the Supreme Court, the employee initially asked for damages for constructive dismissal (the employee terminated his employment contract and asked the Court to hold it as an unfair dismissal) on the grounds of late payment of worked hours and the non-payment of overtime. These two grievances were mentioned in the employee's constructive dismissal letter. Before the Labor Court, the employee, as allowed by French law, brought an additional grievance to support his constructive dismissal claim. The employee had found, after the termination of his employment contract, that his employer had used the services of a private investigator, prior to the termination, to check his actions outside his working time, in violation of his privacy.

To reject the employee's claim, the Supreme Court stressed that the facts related to the use of a private investigator were discovered by the employee only after his constructive dismissal date. As a consequence, the Court could only take into account the initial grievances to determine if the termination was based on serious reasons. The Court considered that the such initial grievances were not serious enough to justify the termination.

The French Supreme Court had already ruled that the employee can rely on facts which are not mentioned in his constructive dismissal letter.2 With its ruling of 9th October 2013, however, the Court has now specified that the misconduct alleged must have been known by the employee before the constructive dismissal date.

1French Supreme Court, social section, 9th October 2013, n°11-24.457

2French Supreme Court, social section, 29th June 2005, n°03-42804

Dismissing an Employee on the Grounds of Facts Already Known at the Time of a Prior Disciplinary Sanction Not Valid

Océane Demoulin, JeantetAssociés, Paris, France

If an employer decides to discipline an employee only for some of his or her faults, the employer cannot later rely on the facts for which the employee has not been disciplined to dismiss this employee, the Supreme Court held in a ruling of 25th September 2013.1

The employer had suspended an employee for one day for specific failures mentioned in the suspension letter. Shortly afterwards, within the two-month time limit applicable to disciplinary sanctions, the employer dismissed the employee for other facts that the employer was already aware of at the time of the suspension but which had not been mentioned in the suspension letter.

According to the Supreme Court, since the employer had decided to discipline the employee only for some of the facts alleged , although at that time he was aware of other faults committed by the employee, the employer could no longer use his disciplinary prerogatives for the other faults.

With its decision, the Supreme Court confirms its previous case law which sets out that the employer who decides to sanction only partly an employee's misconduct cannot subsequently rely on faults known at the time of the sanction but not mentioned in the letter informing the employee of the sanction.

1French Supreme Court, social section, 25th September 2013, n°12-12.976

Employee Cannot Be Validly Terminated Because He Provided a Statement in the Context of a Litigation Against the Company, Except in Cases of Bad Faith

Océane Demoulin, JeantetAssociés, Paris, France

A dismissal due to the content of an affidavit that an employee has delivered to another employee is void unless the employee has acted in bad faith, the French Supreme Court held on 29th October 2013.1

The employee was dismissed for gross misconduct, because, according to the employer, he has drafted a false statement in favor of another employee involved in litigation against the company and informed his colleagues about his intent to testify against the company. The dismissed employee asked the Court to declare his dismissal null and void on the basis of violation of his freedom of expression.

The Court ruled in favour of the employee ruling that testifying is a fundamental freedom pursuant to articles 6 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which cannot be sanctioned by the employer.

According to the Court, dismissing an employee for providing a false statement in the context of litigation against the company and informing the other employees of his view is null and void except if the employer is able to demonstrate the bad faith of the employee who made the statement, i.e., the employee must have been aware of the false nature of the facts mentioned in his statement.

This ruling is in line with the French case law related to harassment matters since an employee who complains about acts of harassments cannot be terminated on this ground except in case of bad faith.

1French Supreme Court, social section, 29th October, 2013, n° 12-22.447

 

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