Maître Avner Doukhan, a lawyer in Paris, explains the rules you need to know about dismissal for serious misconduct.
The employer may decide to dismiss an employee for serious misconduct.
It is important to emphasize that any dismissal for personal reasonsmust be justified by a real and serious cause.
This genuine and serious nature is assessed at the date of termination of the employment contract.
It is the labor court that confirms or invalidates the reason for dismissal.
Therefore, it is important to comply with regulations relating to dismissal for serious misconduct.
The case law of the Court of Cassation has defined serious misconduct as conduct that makes it impossible for the employee to remain in the company.
The consequences in terms of compensation are that it deprives the employee of severance pay and termination benefits.
The law is silent on the assessment of the seriousness of misconduct. Therefore, it is necessary to refer to case law, which recognizes numerous grounds for dismissal for serious misconduct, such as harassment, unjustified absences, insubordination, and theft within the company.
Thus, dismissal for serious misconduct requires that the employee be accused of misconduct that makes it impossible for them to remain with the company.
The procedure for dismissal for serious misconduct
Before taking any action, it is strongly recommended that you check the provisions of your collective agreement relating to dismissal.
The procedure for dismissal for serious misconduct differs from that for dismissal on grounds of incapacity or economic reasons, for example.
It is important to note that the procedure for dismissal for serious misconduct must be initiated within two months of the employer becoming aware of the facts.
However, it is advisable to act sooner.
Indeed, waiting too long can diminish the seriousness of the offense.
Dismissal for serious misconduct takes place in several stages:
- Verification of the circumstances of the facts;
- Notification of temporary layoff;
- The employee's summons to a preliminary interview;
- Notification of dismissal;
- Calculating the final paycheck and organizing the employee's departure.
It is obviously strongly recommended to seek the assistance of an employment lawyer when an employer initiates dismissal proceedings.
Precautionary suspension in the event of dismissal for serious misconduct
In the case of dismissal for serious misconduct, protective suspension is an important step.
In fact, it notifies the employee that he must no longer go to his workplace pending his preliminary interview, given the seriousness of the offense he has committed.
The pre-dismissal interview
The applicable rules regarding the date, time, and location of the interview are the same for all dismissals.
It is important to note that it is the dates of the preliminary interviews for disciplinary sanctions that are taken into account.
The interview takes place following asummonssent by registered letter with acknowledgment of receipt, or delivered by hand against a receipt.
The preliminary interview and the summons must be carried out within a specified time frame.
In fact, the interview cannot take place less than 5 days after receipt of the summons.
The employee summoned may be assisted by a staff representative or another employee of their choice.
A lawyer specializing in labor law cannot assist the employer or employee during the preliminary interview.
The termination letter
The employee is informed of their dismissal by registered letter with acknowledgment of receipt, at least two days after the interview and no later than one month thereafter.
The letter cannot be sent before the two-day period has expired in order to allow the employer time to consider whether or not the dismissal is justified.
Finally, it should be noted that in a dismissal procedure, the employee's departure is immediate.
The employee may then request clarification from their employer within 15 days of receiving the termination letter.
It is therefore in the employer's best interest to respond to the employee in order to clarify the reason(s) for the dismissal.
It is strongly recommended that you seek the assistance of a lawyer specializing in labor law when drafting a letter of dismissal for serious misconduct.
Risks in the event of non-compliance with the procedure for dismissal for serious misconduct
The purpose of legal and contractual provisions is to ensure security for both the employer and the employee.
The procedure may be marred by irregularities.
While some irregularities do not render the procedure invalid, others result in significant penalties.
In fact, if the dismissal procedure is not followed, labor court judges may order the employer to pay damages.
It should be noted that case law evolves very frequently in labor law, particularly with regard to financial penalties related to procedural irregularities.
Thus, certain procedural irregularities may even lead to the dismissal being overturned.
It is therefore essential to seek assistance from a lawyer specializing in labor law.
Compensation in the event of dismissal for serious misconduct
It should be noted that in the case of dismissal for serious misconduct, the law does not provide for any compensation in lieu of notice or severance pay.
However, an employee dismissed for serious misconduct is not deprived of their paid leave allowance, which corresponds to the leave they did not take before leaving the company.
In addition, employees dismissed for serious misconduct are eligible for unemployment insurance.
As mentioned, it is important to familiarize yourself with the applicable collective agreement.
Indeed, the latter may provide for severance pay even in cases of serious misconduct.
No notice period in the event of dismissal for serious misconduct
The notice period refers to the period that must elapse between the announcement of the termination and the end of the contract.
During this period, the employment contract is temporarily maintained. This duration is in principle determined by collective agreement.
In the case of dismissal for serious misconduct, the employment contract is terminated immediately.
The employee cannot work out their notice period.
Worse still, if he complies, the dismissal could be reclassified as dismissal without real and serious cause.
It should be noted that this lack of notice does not give rise to compensation in this case.
If the employee disputes their dismissal,they may refer the matter to the labor relations board in order to assert their rights.
Changes in legislation and case law are significant. It is strongly recommended that you seek assistance from a lawyer specializing in labor law.
For further information, our law firmDoukhan Avocat, specializing in labor law, is at your disposal.