1. Judicial liquidation: conditions for dismissal of the temporarily incapacitated employee
2. Return from parental leave: refusal of the employee to resume his activity in another position
3. Insurance companies: composition of the disciplinary council
4. Disciplinary dismissal: reminder on the guarantee of impartiality
5. Dismissal for incapacity: opinion of the occupational doctor
6. Termination by mutual agreement and collective supplementary retirement savings contract
7. Hours of delegation: compensation for travel time
8. Trade unions' right to take legal action: precision on “ the collective interest of the profession ”
1. Judicial liquidation: conditions of dismissal of the employee temporarily incapacitated
Soc.
December 9, 2014 (n°13-12.535) FP-PB: In the event of total cessation of activity of a company, resulting in the elimination of all workstations and the impossibility of reclassification of the temporarily incapacitated employee, the liquidator may be required to arrange a second medical examination before dismissal.
2. Return from parental leave: refusal of the employee to resume his activity in another position
Soc.
December 10, 2014 (n°13-22.135) FS-PB: An employee benefiting from parental leave asks to return to her part-time duties.
The employer considers that the position of “quality control” manager that she previously occupied full-time can only be occupied full-time and offers her another position. The employee refuses to return to this position at the end of her leave. The employer then dismissed her for serious misconduct. The question arises as to whether the refusal of the employee may be a reason for dismissal for serious misconduct.
The Court of Cassation answers negatively.
In support of its decision, the Court notes, on the one hand, that the employee merely exercised the option reserved for her by article L.1225-51 of the Labor Code, allowing her to convert her parental leave working part-time. The Court also specified that the employer did not demonstrate that the job held before the maternity leave, which was available when she had made her request to resume her part-time activity, was not compatible with a part-time activity. 3. Insurance companies: composition of the Disciplinary Board
Soc.
December 16, 2014 (n°13-23.375) FS-PB: An employee dismissed for serious misconduct after the meeting of the disciplinary council bringing together two staff representatives and two employer representatives, challenges his dismissal.
In support of his request, he invokes non-compliance with the collective agreement of insurance companies, under which the disciplinary board is made up of three members representing staff and three members representing the employer. The Court of Cassation noted that the employee, given the opportunity to appoint his three representatives, did not ask to have one of his representatives then unavailable replaced, nor to postpone the meeting of the Disciplinary Board and that the parity between employee and management representatives had been respected.
The employer has thus fulfilled its obligations. 4. Disciplinary dismissal: reminder on the
Soc impartiality guarantee.
December 17, 2014 (n°13-10.444) FS-PB: In this judgment, the Court of Cassation recalls that the consultation of a body responsible, under the local collective agreement entitled, collective agreement for air transport, to give an opinion on a disciplinary measure envisaged by the employer, constitutes a substantive guarantee.
The dismissal pronounced without the board having been consulted and having rendered its opinion according to a regular procedure cannot have a real and serious cause. In addition, according to article 24 of the agreement, the disciplinary council, made up of the president designated by the management and a delegation of employees, must convene the person in charge, in charge of the instruction of the file.
The members of the Disciplinary Board cannot therefore be responsible for investigating the case and intervene in this capacity before it. The guarantee of impartiality is not ensured when the functions of the person responsible for examining the case are performed by the chairman of the disciplinary council appointed by the employer. The dismissal pronounced in violation of these guarantees is without real and serious cause. 5. Dismissal for incapacity: opinion of the occupational physician
Soc.
December 17, 2014 (n°13-12.277) FS-PB: An employee dismissed for incapacity and impossibility of reclassification disputes before the labor court, the validity of the opinion of the occupational doctor due to the lack of approval of the association by the regional director of work, employment and vocational training.
According to the Court of Cassation, in the absence of appeal exercised before the labor inspector, against the opinions of the occupational physician, these are binding on the judge.
The judge cannot therefore refuse to give effect to the opinions given by this doctor to declare the dismissal without real and serious cause. 6. Contractual termination and collective supplementary retirement savings contract
Ministerial response, Senate (December 25, 2014, n°9678):
Collective retirement contracts are group contracts whose execution is linked to the cessation of activity professional.
They only include the possibility of release in exceptional cases, exhaustively listed by the Insurance Code. Among these cases is the expiry of the rights of the insured person to unemployment benefits in the event of dismissal. The conventional breach of the employment contract, not being a form of dismissal, does not allow the insured to obtain the early release of the sums saved in his collective retirement contract.
7. Delegation hours: compensation for travel time
Soc.
December 9, 2014 (n°13-22.212) FP-PB: In 2013, the social chamber of the Court of Cassation (see in particular Soc. June 12, 2013 (n°12-15.064) FP-PB) considered that the union representative to the Works Council should not suffer any loss of remuneration as a result of the exercise of his mandate.
Travel time, taken outside normal working hours and carried out in the performance of representative duties, was to be remunerated as actual working time for the part exceeding the normal travel time between home and place of work. The question of the remuneration of the travel time of a staff representative is again posed to the Court of Cassation.
In this case, an employee union representative asked the labor court to recall wages for travel time and hours of delegation. The Court of Cassation approves the Court of Appeal which rejects these requests. In support of its decision, the Court specified that in " the absence of provision to the contrary by law, a custom or a unilateral commitment by the employer, the travel time, taken during the normal working hours in execution representative functions, is deducted from the hours of delegation ".
8. Unions' right to take legal action: precision on “
the collective interest of the profession ” Soc.
December 16, 2014 (n°13-22.308) FS-PB: An agreement on the forward planning of jobs and skills provided that the employer would provide, each year, to staff representatives with social data showing the remuneration of men and women for each benchmark profession.
Arguing that the employer was failing in its obligation to deliver fair and relevant information, a trade union seized the tribunal de grande instance to order the employer, under penalty, to communicate to the works council the grid remuneration broken down by benchmark profession.
The Court of Cassation noted that " the documents required of the employer were intended for the works council, which did not request their communication and had not joined in the union's request ".
It follows that the union did not have the standing and interest to act.
