DISMISSAL FOR PERSONAL REASON
As our article from last month exposed the dismissal for economic reasons, it seemed necessary to us to supplement this presentation by the dismissal for the other reasons.
This is how we will expose you:
- The definition of the reasons for dismissal;
- The procedure;
- A brief overview of the other cases of dismissal.
I - DEFINITION OF THE PERSONAL REASON OF DISMISSAL
Contrary to the economic reason, there is no legal definition of the personal reason for dismissal. The reason is due only to the person of the employee himself. The law only requires that the cause be real and serious.
- Definition of a real and serious cause
- Real: which is based on objective, verifiable facts and not on a subjective impression or judgment;
- Serious: severe enough to make dismissal inevitable. The events should be assessed on a case-by-case basis, depending on their magnitude, their consequences on the smooth running of the company, the employee's "state of service".
In the event of a dispute before the Labor Court, the judge decides on the basis of the information provided by the employer and the employee. He justifies in the judgment that he pronounces the amount of compensation eventually he grants. If a doubt remains, it benefits the employee.
- Penalty incurred if reason is not real or serious
If the judge considers that there is no real and serious cause, he can propose the reintegration of the employee in the company, with maintenance of his acquired advantages. If one of the parties refuses the reinstatement, the judge awards the employee compensation payable by the employer. The minimum amount of this allowance ranges from 0.5 to 3 months of wages depending on the number of employees in the company and the seniority of the employee.
- Definition of personal motive
It is not necessarily a fault. Other reasons (professional insufficiency, repeated or prolonged absences leading to the impossibility of maintaining the employment contract, etc.) can be the reason for dismissal.
If it results from a fault, it may, depending on its importance (simple, serious or heavy), exempt the employer from the payment of certain indemnities.
II - DISMISSAL PROCEDURE
- The invitation to the preliminary interview
Before any decision, the employer must convene the employee to a prior dismissal interview by registered letter or hand delivery against discharge. The convocation mentions:
- The subject of the interview (i.e. the dismissal project);
- The date, place and time of the interview (at least 5 working days after presentation of the registered letter or hand delivery);
- The possibility for the employee to be assisted during the interview by a person of his choice (member of staff of the company or, in the absence of a staff representative, an employee advisor).
- The employee's hearing
This interview is intended to allow the employer to make an informed decision and the employee to know the reasons behind his dismissal.
The absence of interview leads to damages and interests which cannot be higher than one month's salary.
The participants are:
- The employee and his assistant (who may be outside the company);
- The employer or his representative can also call on an assistant, but the latter must be one of the members of the company.
During the interview, the employer must indicate the reasons for the proposed redundancy and he must listen to the explanations of the employee and / or his adviser.
- The dismissal letter
After the interview, the employer must wait at least 2 working days to send the letter of dismissal by registered letter with acknowledgment of receipt.
This letter must include the specific reason(s) for the termination. The mere reference to the gravity of the alleged acts, a loss of confidence or a professional insufficiency does not constitute a sufficiently precise reason.
Within 15 days of notification of the dismissal, the employee may ask the employer, by registered letter with acknowledgment of receipt, for details on the reasons set out in the dismissal letter. The employer has 15 days to provide details if he wishes. He communicates these details to the employee by registered letter with acknowledgment of receipt or delivery against receipt.
In addition, within 15 days of notification of the dismissal and in the same form, the employer may, on its initiative, specify the reasons for the dismissal.
- The notice of dismissal
Unless serious or gross negligence, a notice must be observed for a duration at least equal to:
- One month, if the employee's seniority is between 6 months and 2 years;
- Two months, for a seniority of 2 years or more.
The notice begins on the day of the first presentation of the notification letter, whether the employee acknowledges receipt or not. The collective agreement may include more advantageous provisions.
During the notice, the employee works normally and receives his remuneration, but the employer can exempt the employee from executing it totally or partially.
- The sanction incurred for procedural errors
When a formal irregularity was committed during the procedure, in particular if the dismissal of an employee occurs without the procedure required by law having been observed or without the conventional consultation procedure prior to dismissal having been observed, but if the reason for the dismissal is real and serious, the judge grants the employee, payable by the employer, an indemnity which cannot be greater than one month's salary.
III - SOME SPECIAL CASES
- Conventional rupture
The contractual termination is a procedure which allows the employer and the employee to jointly agree on the conditions for the termination of the employment contract. It is only possible for open-ended employment contracts, it cannot be imposed by either party.
The procedure: the employer and the employee set up the termination agreement during one or more interviews. The failure of the interview(s) provided by law results in the nullity of the agreement.
During this interview (or these interviews), the employee may be assisted by a person of his choice, whether or not belonging to company personnel. He must inform the employer beforehand.
The employer can also be assisted, he must inform the employee before the date fixed for the interview(s).
The list of people likely to assist the employee or the employer is limitative; no other, such as a lawyer, can therefore attend these interviews.
The content of the agreement: the termination agreement defines the conditions for this termination, that is to say:
- The amount of compensation that will be paid to the employee. This amount cannot be lower than that of the statutory termination indemnity;
- The date of termination of the employment contract, which cannot take place before the day after the day on which the agreement is approved by the administrative authority.
A copy of the agreement must be given to each of the parties, employer and employee, on pain of nullity of the termination. The copy returned to the employee must also be given directly to him.
- Dismissal following not professional illness or incapacity
No employee can be dismissed because of their state of health. If it is established that the dismissal is linked to the employee's state of health, the dismissal will be null.
The dismissal of the sick employee can be considered when the absences for illness are prolonged or repeated, for the following reasons:
- When the prolonged absence or repeated absences disrupt the operation of the business and the employer has to provide for his permanent replacement. In addition, the origin of the employee's absences must not be linked to the employer's failure to comply with his safety obligation;
- When the employee is declared unfit to return to his job. The employer must either justify his impossibility of offering a job in accordance with the indications of the occupational doctor or prove that he proposed one and that the employee refused it;
- When the sick employee does not respect his obligations or has committed a fault before the onset of the illness leading to the termination.
In all cases, the employer must respect the procedure for dismissal for personal reasons.
- Dismissal following a work accident or an occupational disease
In the event of occupational illness or incapacity, the employee may be dismissed for incapacity only if one of the following conditions is met:
- He refused the job that his employer offered him;
- The employer justifies the impossibility of offering a job;
- The opinion of the occupational doctor mentions that keeping the employee in a job would be seriously prejudicial to his health;
- The opinion of the occupational doctor mentions that his state of health makes it impossible to reclassify in a job.
In all cases, a specific procedure must be followed.
- Automatic retirement by the employer
The employer can automatically retire an employee who is at least 70 years old. On the other hand, before the age of 70, the employer can propose to the employee to retire if he has reached the age of automatic opening of the right to a full rate pension. However, the employee is not required to accept.
In all cases of dismissal, whether for personal or economic reasons, the procedural rules must be strictly followed to avoid sanctions which can, in certain cases, be very heavy.
As soon as you have to start a redundancy project, you must be assisted by a competent professional to avoid all possible procedural errors. You can contact us, we are of course able to assist you in this process.