Severance pay: impact of serious misconduct during the notice period

 « If the right to severance pay arises on the date on which the dismissal is notified, the assessment of the amount of the severance pay is made taking into account seniority at the expiry of the contract .

It follows that the Court of Appeal, which finds that the serious fault committed during the execution of his notice by the employee, who was not exempted from it, had the effect of interrupting the notice, decides right to take this interruption into account in determining the amount of the severance pay . »

Court of Cassation, social chamber, September 11, 2019, n° 18-12.606, published in the bulletin

An employee, who had 3 years of seniority in the company, was dismissed for professional incompetence and must perform a contractual notice period of 6 months. His employment contract ends during the execution of his notice, his employer having notified him of an early termination of it for serious misconduct.

When establishing his balance of all accounts, the employer calculates the amount of the severance pay, taking into account seniority expiring on the date of early termination of the notice.

The employee contested the amount of the severance pay which was calculated on the basis of this seniority, considering that the said compensation should be calculated on the expiry date of the normal period of her contractual notice.

In a judgment of September 11, 2019, the social chamber of the Court of Cassation confirmed the judgment of the Court of Appeal of Basse-Terre, which rejected the employee's request.

The Court of Cassation considered, in this judgment of September 11, 2019, that the amount of the severance pay due to the employee must be calculated by taking into account a seniority assessed at the expiry of the employment contract, i.e. i.e. on the date of early termination of his notice.

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As a reminder, any employee holding an employment contract of indefinite duration and having at least 8 months of seniority can claim severance pay, regardless of whether he receives notice and performs it. [1].

Nevertheless, seniority at the time of termination of the contract, taken into account to open the right to severance pay, must not be confused with seniority at the time of expiry of the contract, taken into account for the calculation of said severance pay.

Indeed, the severance pay is calculated according to the seniority acquired by the employee on the date of the end of his employment contract, including notice, whether it is executed or not.

In other words, if the dismissed employee benefited or should have benefited from notice, the duration of the latter must be taken into account to calculate the severance pay.

However, in the situation where the notice is interrupted by the employer via an early termination of the notice for serious misconduct, it is on the date of the early termination that the employee's seniority should be assessed, in insofar as it is on this date that the latter's contract ends.

This is what the social chamber of the Court of Cassation has just recalled in this judgment.

[1] Article L.1234-9 of the Labor Code, as amended by the so-called Macron Ordinance No. 2017-1387 of September 22, 2017

The impact of serious misconduct during notice.PDF