When an employee is dismissed, three questions occur:
- Is my dismissal letter challengeable?
- Which Conseil de prud’hommes should I refer to?
- How much can I sue for and obtain in case of unfair dismissal?
1) What information must be contained in the dismissal letter?
One dismissal (personal or economic) should be based on a real and serious cause (art. L. 1232-1 and L. 1233-2 of the Labor Code).
The dismissal letter is the key point of the dismissal procedure.
Indeed, it sets the limits of the litigation (Cass. soc. March 2nd, 1999, Cass. soc. February 27th, 2008).
Judges cannot examine possible grounds that can justify dismissal, if such grounds do not appear in the dismissal letter.
If the employer does not state any specific ground in the dismissal letter, this equates to a lack of grounds (Cass. soc. November 20, 1990), the dismissal would be without real and serious cause; the employee can then obtain damages in Court.
In addition, the indication of the grounds cannot be made by reference: thus, the reference in the letter of dismissal of "misconduct stated in previous correspondence" is not a statement of grounds required by French law (Cass. Soc. January 8th, 1997).
It is the same for a reference to the grounds stated in the letter fixing an appointment to the preliminary discussion before dismissal (Cass. Ass. Plen. November 27th, 1998).
Moreover, the ground stated in the dismissal letter must be "sufficiently specific to be verifiable” (Cass.soc. April 25, 2001).
Thus, the grounds were too judged as too “vague”:
- "Refusal to employment contract’s amendment" (Cass. soc. April 2nd, 1997);
- "Necessity for Restructuring" (Cass. soc. March 28th, 2000);
- "Incapacity to held job" (Cass. soc. February 20th, 2002).
On the other hand, were considered as sufficiently motivated the following grounds:
- "Removing jobs following a restructuring of the company” (Cass. soc. March 2, 1999);
- "Conduct contrary to morality" (Cass. soc. April 25, 2001).
Finally, the employee must check the dispatch date of the letter of dismissal: indeed, Article L. 1232-6 of the Labor Code stipulates that the letter of dismissal cannot be sent within two business days after the date of the preliminary discussion before dismissal.
2) Which Conseil de prud’hommes should I refer to?
In principle, the employee must refer to the court of the “defendant’s domicile”, which means the Conseil de prud’hommes of his/her employer’s head office.
The rule of Conseil de prud’hommes’ territorial jurisdiction, under section A. 1412-1 of the Labor Code, is as follows:
- When the employee works in a site, the Conseil de prud’hommes is competent in whose jurisdiction the site is located;
- When an employee works outside of any site, the Conseil de prud’hommes of his/her domicile is competent.
In all cases, the employee has a right of option:
- He can refer to the Conseil de prud’hommes of the place where his/her employment contract was signed or,
- It can refer to the Conseil de prud’hommes of where the employer is established.
If the employment contract contains a clause that diverge from these rules, it is deemed unwritten.
3) Unfair dismissal: how much an employee can obtain?
French law distinguishes between employees with at least 2 years’ service in a company of 11 or more employees, and employees with less than 2 years’ service or who worked in companies with fewer than 11 employees.
a) Employees with at least 2 years’ service in a company of 11 or more employees
Concerning these employees, Article L. 1235-3 of the Labor Code states that a judge may propose reinstatement of the employee in the company, with the maintenance of its benefits (although in practice this rarely happens).
In case of unfair dismissal, the employee will receive compensation that cannot be less than the remuneration of the last six months preceding the dismissal.
This compensation should take into account the remuneration, which is fixed or variable (Cass.soc. April 10th, 1991 No. 87-41433), but also overtime that the employee performed during the last six months (Cass.soc. September 21th, 2005 No. 03-43585).
The six months' remuneration is a minimum, the judge may increase such damages depending on its assessment of the facts, especially the injury which the employee relies for his/her unfair dismissal.
In this regard, criteria that allow the employee to get more than six months' wages are:
- His/her age;
- His/her seniority;
- His/her family responsibilities;
- Having found a job or not;
- His/her health;
- His/her moral damages (vexatious circumstances of the dismissal);
- etc.
b) The other employees: with less than 2 years’ service and/or who worked in a company with fewer than 11 employees
Foregoing provisions shall not apply to employees with less than 2 years’ service, but also to employees whose company employs less than 11 employees, in accordance with Article L. 1235-5 of the Labor Code.
In this case, the compensation requested by the employee will report to the unfettered discretion of judges, and will depend on the damage he/she will necessarily suffer because of his/her dismissal.
In practice, in case of unfair dismissal, the amount of damages is equivalent to three months gross salary, unless the employee establishes a further injury (age, family responsibilities, long-term unemployment, etc.).
4) Other demands that an employee may request
In any event, the employee may make additional requests before the court:
- Notice’s compensation;
- Paid holidays;
- Various bonus (13th month, etc.);
- Conventional / legal dismissal’s compensation;
- Overtime’s payment;
- Various damages (hidden work, vexatious litigant, bullying, etc.).
Frédéric CHHUM
Avocat à la Cour
Camille COLOMBO
Juriste en droit social
Tél : 01 42 89 24 48
Ligne directe : 01 42 56 03 00
e-mail : [email protected]
Site internet : www.chhum-avocats.com
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