1. Judicial liquidation: conditions for dismissal of a temporarily unfit employee
2. Return from parental leave: employee's refusal to resume work in another position
3. Insurance companies: composition of the disciplinary board
4. Disciplinary dismissal: reminder of the guarantee of impartiality
5. Dismissal for unfitness: opinion of the occupational physician
6. Negotiated termination and supplementary group retirement savings contract
7. Time off for union duties: remuneration for travel time
8. Right of unions to take legal action: clarification on " the collective interest of the profession "
1. Judicial liquidation: conditions for dismissal of a temporarily unfit
employee December 9, 2014 (No. 13-12.535) FP-PB:
In the event of a company's complete cessation of activity, resulting in the elimination of all jobs and the impossibility of reassigning a temporarily unfit employee, the liquidator cannot be required to organize a second medical examination before proceeding with the dismissal.
2. Return from parental leave: employee's refusal to resume work in another position.
Soc. December 10, 2014 (No. 13-22.135) FS-PB:
An employee on parental leave requests to return to work part-time. The employer considers that the "quality control" manager position she previously held full-time can only be filled on a full-time basis and offers her another position. The employee refuses to take up this position at the end of her leave. The employer then dismisses her for serious misconduct.
The question arises as to whether the employee's refusal can constitute grounds for dismissal for serious misconduct.
The Court of Cassation answers in the negative. In support of its decision, the Court notes, firstly, that the employee merely exercised the option available to her under Article L.1225-51 of the French Labor Code, allowing her to convert her parental leave into part-time work. The Court further specifies that the employer fails to demonstrate that the position held before maternity leave, which was available when she requested to resume her part-time work, was incompatible with part-time employment.
3. Insurance companies: composition of the disciplinary board
. French Supreme Court (Cour de cassation), December 16, 2014 (No. 13-23.375) FS-PB:
An employee dismissed for serious misconduct after a meeting of the disciplinary board, composed of two employee representatives and two employer representatives, contests his dismissal. In support of his claim, he cites non-compliance with the collective bargaining agreement for insurance companies, according to which the disciplinary board is composed of three employee representatives and three employer representatives.
The Court of Cassation notes that the employee, having been given the opportunity to designate his three representatives, did not request a replacement for one of his representatives who was unavailable, nor did he request a postponement of the disciplinary board meeting, and that parity between employee and management representatives had been respected. The employer thus fulfilled its obligations.
4. Disciplinary dismissal: reminder of the guarantee of impartiality.
Soc. 17 December 2014 (no. 13-10.444) FS-PB:
In this ruling, the Court of Cassation reiterates that consulting a body responsible, under the local collective agreement entitled "Collective Bargaining Agreement for Air Transport," for providing an opinion on a disciplinary measure contemplated by the employer, constitutes a fundamental guarantee. A dismissal issued without consulting the board and obtaining its opinion through due process cannot be considered to have a genuine and serious cause.
Furthermore, according to Article 24 of the agreement, the disciplinary board, composed of the chairperson appointed by management and a delegation of employees, must summon the person responsible for investigating the case. Members of the disciplinary board cannot therefore be responsible for investigating the case and appear before it in that capacity. The guarantee of impartiality is not ensured when the functions of the person responsible for investigating the case are performed by the chairperson of the disciplinary board appointed by the employer. A dismissal issued in violation of these guarantees is without genuine and serious cause.
5. Dismissal for incapacity: opinion of the occupational physician
. December 17, 2014 (No. 13-12.277) FS-PB:
An employee dismissed for incapacity and impossibility of reassignment challenged the validity of the occupational physician's opinion before the labor court, arguing that the association lacked accreditation from the regional director of labor, employment, and vocational training.
According to the Court of Cassation, in the absence of an appeal to the labor inspector against the occupational physician's opinion, the judge is bound by it. The judge cannot therefore refuse to give effect to the opinions given by this physician to declare the dismissal without just cause.
6. Negotiated Termination and Group Supplementary Retirement Savings Contract.
Ministerial Response, Senate (December 25, 2014, No. 9678):
Group retirement contracts are group contracts whose execution is linked to the cessation of professional activity. They only allow for early withdrawal in exceptional circumstances, exhaustively listed in the Insurance Code. Among these circumstances is the expiration of the insured's unemployment benefits in the event of dismissal.
Since a negotiated termination of the employment contract is not a form of dismissal, it does not allow the insured to obtain early withdrawal of the sums saved in their group retirement plan.
7. Time off for union duties: compensation for travel time
. French Supreme Court (Cour de cassation) Social Chamber, December 9, 2014 (No. 13-22.212) FP-PB:
In 2013, the Social Chamber of the French Supreme Court (Cour de cassation) (see in particular Social Chamber, June 12, 2013 (No. 12-15.064) FP-PB) ruled that the union representative on the works council should not suffer any loss of remuneration due to the exercise of their mandate. Travel time, taken outside normal working hours and undertaken in the performance of representative duties, should be remunerated as actual working time for the portion exceeding the normal commute between home and the workplace.
The question of remuneration for the travel time of a staff representative has once again been brought before the Court of Cassation. In this case, a union representative sought back pay from the labor court for travel time and time spent on union duties.
The Court of Cassation upheld the Court of Appeal's decision, which rejected these claims. In support of its decision, the Court specified that " in the absence of any contrary provision by law, custom, or unilateral undertaking by the employer, travel time taken during normal working hours in the performance of representative duties is deducted from time spent on union duties ."
8. Right of unions to take legal action: clarification on "
the collective interest of the profession " Soc. December 16, 2014 (No. 13-22.308) FS-PB:
An agreement on workforce planning and skills management stipulated that the employer would provide employee representatives with annual social data showing male and female salaries for each benchmark job.
Claiming that the employer was failing to fulfill its obligation to provide accurate and relevant information, a union brought an action before the High Court seeking an order compelling the employer, under penalty of a fine, to provide the works council with a salary scale broken down by benchmark job.
The Court of Cassation noted that " the documents demanded from the employer were intended for the works council, which had not requested them and had not joined the union's request ." Consequently, the union lacked standing and interest in bringing the action.
