In labor law, unless they have committed serious misconduct, an employee who was hired for an indefinite period may be dismissed only if the break is motivated by a "real and serious." According to the preparatory work a "real cause" would be both a cause and an existing exact cause, that is independent of good or bad mood of the employer. The real question is not whether the facts alleged do not exist or if these facts were not grounds for the real reason for the failure. For its part the issue is "serious" when the facts are serious enough to consider that maintaining the link between the work would be an embarrassment for the normal functioning of the company. A collective agreement may provide that préalablelment to send a letter of dismissal, the employer must receuillir the opinion of a Disciplinary Board. If this opinion was not asked, the irregularity makes the dismissal without cause real and serious (Soc. - September 16, 2008, BICC n694, 15 January 2009).
The decisions listed below have been identified in the Newsletters of the Court of Cassation, are the most recent jurisprudence on the subject:
does for an employee to leave his position because of his condition of Health to consult a doctor does not in itself constitute misconduct which would justify his dismissal. (Cas. Soc. - July 3, 2001.)
Collective Agreement urban transport provision before the meeting of the Disciplinary Board charged with giving a reasoned opinion on the proposed punishment, the head of department should conduct the investigation of the case and submit a report to the council. Constitutes a dismissal without cause real and serious deprivation to the employee of these substantive guarantees. (Cass Ch 9th, sect. B, February 13, 2002.)
constitute sexual harassment and acts of the person who, abusing the authority conferred by his functions necessarily constitute serious misconduct liable to the Supreme the decision which, although held that the complaint of sexual harassment were established against an employee, believes that it was not a serious fault. (Cass. soc. - March 5, 2002.).
can not, however, in itself constitute a real and serious cause for dismissal, the refusal by the employee occupying the position of reclassification proposed by the employer pursuant to Article L. 122-24-4 of the Labour Code so that the proposed reclassification involves altering the employment contract. (Cass. soc. - April 9, 2002.). In contrast, the Social Chamber decided that when a company encountered serious financial difficulties which imposed drastic measures to ensure its sustainability, the economic difficulties were such as to justify the proposal to the entire sales staff of the commission calculation system designed to reduce its payroll. In this case, the trial court could have decided, without incurring any of the complaints of the plea that the dismissal was an economic cause real and serious But a proposed amendment to the contract of employment that the employee may still refuse does not relieve the employer of his obligation to reclassification (Social Chamber, 25 November 2009, appeal No. 08-42755, Legifrance).
The provisions relating to the contract says "New hires" (NEC), established by Ordinance No. 2005-893 of August 2 2005 and Article L. 1223-4 of the Labour Code, were repealed by section 9 of Act No. 2008-596 of 25 June 2008 which provides for the recharacterization of CNE in CDI outstanding at the date of publication of the law, namely, 26 June 2008 (Cass. soc., 1 July. 2008, No. 07-44. 124, F-P + B + R + I. See also Cass Press. ch. soc. 1 July 2008 on the site Court of Cassation This reclassification is entitled to the employee whose contract is deemed to have been broken without real and serious cause to charge the compensation payable in the event of dismissal.
Texts
Labour Code (renumbered), Art. L1134-4 , L1144-3 L1232-1, L1233-2 L1235-2 L1235-3 f., L5134-15 L5134-104 et seq, R1235-13 R1235-17.
Labour Code (old numbering). L122-14-3, L122-14-4,
0 comments:
Post a Comment