Termination without cause real and serious: how to decide the prud'hommes

termination without cause real and serious is one of the main reasons for referral to tribunal by an employee. In which case, the board recognizes it, and what can we claim if it is recognized as such? What a difference with the unfair dismissal or no?

economic Difficulties of the enterprise, relationship problems, suspicion of theft... There are many causes of dismissal, but each of them needs to be justified, it is enshrined in the labour law (law of 13 July 1973, supplemented by the law of 2 August 1989)*. The employer who decides to terminate the contract of employment must therefore be based on a cause "is objective, real and serious". If the employee disputes the reason, this will be at the court (tribunal of first instance, court of appeal of second instance) to judge.

what is a cause "real and serious"?

The law is deliberately vague on this notion, but the case law draws the framework. The actual cause is based on the material facts charged to the employee and must be: objective (verifiable) , existing (for example theft), and exact (the employee caught in the act). As to the cause serious, it is based on the strictly professional nature of acts occurring in the workplace and during working hours. It raises the question of the retention of the employee in the company. In the absence of specific reason, the dismissal is without cause real and serious.

Repetition of facts or acts that could be harmful

Thus, altercations repeated on a workplace in the presence of customers, the absence of a seller to his position are put forward by the company that the risk of suffering the consequences of these behaviors. In management positions, this may be the business that is not going to her appointments, reports (reporting) non-rendered, or meetings forgotten. Late or unexcused absence are grievances classics. The repetition adds to the folder. An exceptional situation may thus be detrimental to the company.

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To be recognized, the probable cause must be demonstrated by the employer. The lawyer of the employee must demonstrate to the Board that the evidence is insufficient or that his client is the victim of a situation, initiated by a third party. The actual cause and serious is not necessarily synonymous with fault. Thus, it can be appreciated in the light of the prejudice caused to the company (economic circumstances, mobility denied...)

What are the benefits ?

If the dismissal is without cause real and serious, the damages may be paid. They may not be less than six months of salary, if you have two years of seniority in a company with at least 11 employees. Below two years of age and in a company of fewer than 11 employees, compensation for the prejudice remains at the discretion of the Board. The reinstatement may be requested, but this request is quite rare.

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What is the difference with the unfair dismissal?

The unfairness of a dismissal may possibly be superimposed on an actual cause and serious: thus, to dismiss an employee in a manner vexatious or brutal reports of the abuse, and the employee (more than two years of seniority in a company of 11 or more employees) can claim damages and interest the amount of which will be appreciated by the prud'hommes.

This means that the lawyer may ask several times as to damages, but on criteria ("heads of claim") different. An employee suspected of theft may be terminated for cause real and serious. If the employer has searched in his business or in his computer in his absence to find a proof, the employee can still request the conseil des prud'hommes damages for a termination without cause real and serious and damages for unfair dismissal, due to the brutal character and vexatious of this decision. in

And with the dismissal null?

the nullity of The dismissal may be requested in the case of a discrimination or of a discriminatory measure on "its origin, its sex, its manners, its sexual orientation, gender identity, age, family situation or pregnancy, genetic characteristics, of the particular vulnerability resulting from his or her economic situation... of his belonging or non-belonging to... an ethnic group, a nation or an alleged race, of his political opinions, his trade union activities or mutual-benefit, of its religious convictions, its physical appearance, family name, place of residence or direct debit, or by reason of his state of health, loss of autonomy or disability, of his ability to express himself in a language other than French" to be founded (article L 1132-1 of the labour code and following).

The nullity may also be sought for a whistleblower who would have denounced in "good faith" of the facts which he ought to have had knowledge during the exercise of its functions and which are constitutive of a crime, or a crime (Court of cassation decision no. 1309 of the June 30, 2016).

The main consequence the dismissal null is the request for reinstatement of the employee to the same position held previously or an equivalent position. The employee may ask for and collect all sums that it has not touched since his departure from the company up to the date of his reinstatement. In this case, he receives no severance payment.

however, If (as is very often the case) he does not obtain his reinstatement, he may make the same demands as for a termination without cause real and serious with the payment of severance pay ; pay in lieu of notice ; pay in lieu of paid leave ; the indemnity fixed by the judge and which may not be less than six months at a minimum. And without a cap: the schedule of statutory compensation provided for in the event of termination of employment without cause real and serious is not applicable if the dismissal is void (article L 1235-3-1).

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(1) Law of 13 July 1973, supplemented by the law of 2 August 1989