Execution of the notice – Reclassification – Skills assessment – VAE – Training
Social newsletter n°2
Should the unfit Employee, who does not give notice, be informed of the option to request a skills assessment, a VAE or a training action?
Yes for the Court of Cassation.
This has just ruled that "the employer must, in the letter of dismissal, except for gross negligence, inform the employee of the possibility he has of requesting, until the expiry of the notice, that it be or not executed, or for a period equal to that of the notice which would have been applicable, to benefit from a skills assessment action, validation of acquired experience or training” (Cass. soc. 25 September 2013 no. 12-20310 P). Any breach of this obligation “necessarily causes harm to the employee”. In this case, it was argued that the fact that the employee was unable, due to his physical incapacity, to carry out his notice exempted the employer from providing this information.
This decision is part of the current case law which tends to increase the number of mandatory statements in the letter of dismissal.
How far does the obligation to reclassify the incapacitated employee go?
In any case, it does not impose on the employer the creation of two jobs to maintain the employee.
Thus the Court of Cassation censured an appeal judgment which had considered that the employer, a private individual, who had dismissed a cleaning lady declared partially unfit and recruited another part-time employee during the absence of the person concerned did not establish not that it was impossible for her to adapt her workstation by offering her tasks suited to the recommendations of the occupational physician (Cass. soc. 10 July 2013 no. 12-21380 P). In so ruling, the Court of Appeal had added obligations that the individual employer's collective agreement (IDCC 2111) did not provide for in terms of redeployment.
Should the termination of the CDD for incapacity be preceded by a preliminary interview?
The Court of Cassation expresses a contrary opinion: The procedure for terminating a fixed-term employment contract for the incapacity of the employee, noted by the occupational doctor, as provided for in article L.1243-1 of the labor code , should not give rise to a summons to a preliminary interview (Avis Cass. October 21, 2013 n° 15013 – request n° 13-70006).
Under the terms of article L 1243-1 of the Labor Code, unless the parties agree, the fixed-term contract can only be terminated before the end of the term in the event of serious misconduct, force majeure or incapacity verified by the occupational physician. The question of the preliminary interview was likely to arise when case law imposes this interview in the event of early termination for serious misconduct, although the texts exclude in principle the application of the dismissal procedure to the fixed-term contract, whatever whatever the reason for the breakup.
