Newsletter No. 102 – June 2017

To justify a dismissal on grounds of professional incompetence, an employer produced some of the employee’s emails. The trial judges ruled out the latter, because the professional mailbox had not been declared to the CNIL.  The French Supreme Court (Cour de cassation) overruled this decision.  It indeed considers that “the absence of a simplified declaration of a professional email system that is not monitored by an individual control of the employees’ activity, which is thus not likely to infringe one’s privacy or liberties […], does not render illicit the production for use in legal proceedings of emails addressed by the employer or by the employee, and the author of which cannot ignore that they are registered and stored by the information system” (Cass. Soc., 1 June 2017, No. 15-23.522).

After having requested, and obtained, the possibility of leaving the company within a voluntary redundancy scheme provided for in the employment safeguard scheme, an employee requested that her dismissal be deemed without a real and serious cause.  She reproached her former employer for not having complied with the order of the dismissals.  Dismissed by the trial judges, the employee appealed to the Cour de cassation which dismissed the appeal.  The Cour de cassation recalls indeed that “save where the employer commits to subject itself thereto, it is not bound to implement the legal or conventional provisions relating to the order of the dismissals when the termination of the employment contract for economic reasons results from a voluntary departure of the employee within a voluntary redundancy scheme provided for after consultation of the personnel representative bodies” (Cass. Soc., 1 June 2017, No. 15-25.453).

According to a now settled case law, the employee holding an external mandate may benefit from the related protection only if he has informed his employer thereof prior to the dismissal.  For the first time, the High jurisdiction chooses the same solution, when the dismissal is pronounced by the judicial liquidator.  It indeed specifies that “it rests with the employee who invokes a protection due to a mandate external to the company to establish that he informed the liquidator of the existence of said mandate at the latest during the meeting prior to the dismissal, or, if it is a termination requiring no prior meeting, at the latest before the notification of the termination act, or that the liquidator was aware thereof” (Cass. Soc. 1 June 2017, No.16-12.221).

Article L. 1226-10, §1 of the Labor code provides that “when, on expiry of the periods of suspension of the employment contract following an accident at work or an occupational disease, the employee is declared unfit by the occupational doctor to resume the position he previously occupied, the employer offers him another position, suitable for his capabilities”.  In this case, a court of appeal had sentenced an employer to pay to the employee a sum, on the grounds that nothing evidenced that he had offered a redeployment position, nor that the employee had refused such an offer, since no writing existed in this respect.  The trial judges also considered that the letter of dismissal mentioning the existence of a redeployment offer, even if corroborated by the testimony of a personnel representative, did not suffice to demonstrate that the employee would have been the addressee thereof.  Yet, for the Cour de cassation, the employer is not bound to offer the redeployment positions in writing, since the law does not provide for such an obligation. (Cass. Soc. 8 June 2017, No.15-29.419).

After having addressed a resignation letter to his employer on grounds of retirement, an employee had requested the redefinition of the termination of his employment contract as a dismissal without a real and serious cause.  Yet, according to the Cour de cassation, “retirement of the employee is a unilateral act whereby the employee expresses in a clear and non-equivocal way his will to terminate his employment contract”.  “When the employee, without invoking an imperfect consent likely to lead to the cancellation of his retirement, questions the latter because of facts or breaches attributable to the employer, the judge must, if it results from circumstances that predated or were contemporary with his departure that on the date on which it was decided, the latter was equivocal, analyze it as the due taking note of the termination which produces the effects of a dismissal without real and serious cause if the facts invoked justified it or in the opposite situation of  voluntary retirement” (Cass. Soc. 15 June 2017, No. 15-29.085).

 

Article L. 1235-12 of the Labor code provides that “in case of non-compliance by the employer of the procedures of consultation of the personnel representatives or of information of the administrative authority, the judge grants to the employee affected by a collective dismissal for economic reasons, an indemnity to be borne by the employer calculated on the basis on

of the prejudice suffered”.  In this case, the trial judges had sentenced a company to pay damages to the employees on the basis of this text.  The High jurisdiction overruled the decision of the Court of appeal, reproaching it for not having “[defined] the existence of any prejudice suffered by the employees due to the nonobservance of the dismissal procedure”.  Consequently, the absence of consultation of the personnel representatives no longer necessarily causes a prejudice to the employee (Cass. Soc. 14 June 2017, No. 16-16.001).

The Cour de cassation clearly states, for the first time, that “the reference salary to be taken into consideration for the calculation of the legal or conventional severance pay is, according to the most favorable method for the employee, that of the last twelve or three months preceding the sick leave” (Cass. Soc. 23 May 2017, No. 15-22.223).

The Cour de cassation refused to relay a priority question on constitutionality to the Conseil Constitutionnel relating to this particular procedure, considering that there was no breach of equality between the parties, the employee not being in the same situation as the defendant (Cass. Soc. 1 June 2017, No. 17-40.031).