Real and serious cause
The Article L1232-1 provides that any dismissal for personal reasons must be justified by a real and serious cause.
This requirement was introduced by the law of July 13, 1973. The employer can terminate the employment contract only for a real and serious cause, in the absence of this real and serious cause the dismissal is irregular.
This requirement, introduced by the law of 1973, is not the subject of any legislative definition. It is defined by case law.
REAL AND SERIOUS CAUSE
With the rise in unemployment, case law has become more and more demanding. In matters of economic dismissal, the judge’s control limits the manager’s freedom of management , as regards the management options as to the proportionality between the difficulties of the company and the number of positions eliminated.
The real and serious cause is reflected in the motivation given during the preliminary interview and then in the notification of dismissal by the dismissal letter . The substantive requirement, controlled by the judge, translates into a formal requirement, in particular in the drafting of the dismissal letter (this must correspond to the content of the interview).
The real and serious cause must be an objective cause, capable of verification and not a subjective judgment . Loss of confidence not based on any specific fact can no longer be considered a real and serious cause. It must be existing and accurate.
This serious cause can be an employee’s fault, if it is not just a slight fault. The allegations against the employees must be assessed on a case-by-case basis, depending on their extent, their consequences on the smooth running of the company, the employee’s “service records”. The fault must be of a professional nature. It cannot relate to personal life. However a fault committed outside the time and place of work which creates a disorder characterized within the company, because of the functions of the employee and the specific purpose of the company can however be a serious cause of dismissal (Cass . soc. 20 November 1991), as when “the facts relate to the professional life of the employee (Cass. soc. 6 February 2002).
If the cause results from a fault, this one can, according to its importance (simple, serious or heavy), exempt the employer from the payment of certain indemnities. Unauthorized absences, indiscretions, certain professional faults … can, depending on the circumstances, constitute a simple fault – but sufficient to justify the dismissal – or a serious fault. Serious misconduct is that which causes serious disturbances or losses for the company and makes it impossible for the employee to remain in the company. In this case, no notice or severance pay is due. Gross negligence has all the characteristics of serious fault, reinforced by the employee’s intention to harm the employer or the company (theft, embezzlement).
The real and serious cause may not be faulty, and result from an employee’s situation which is incompatible with the interests of the company; professional insufficiency, physical incapacity noted by the occupational physician, bad relations with other employees or customers.
The reality and the seriousness of the cause must be assessed on the day when the decision to terminate the contract is taken by the employer (Cass. Soc. January 5, 1999).
PROFESSIONAL INSUFFICIENCY OBJECTIVES CLAUSE
SERIOUS AGREEMENT DISRUPTING THE OPERATION OF THE COMPANY
the behavior of the employee, who denigrated and harassed her subordinates in public and displayed aggression both towards her employer and towards other employees and contractors of the company, was at the origin of the serious disagreement stated in the dismissal letter and that this disagreement disrupted the operation of the company; that for these reasons alone, exercising the power it holds from Article L. 122-14-3 of the Labor Code, it decided that this behavior constituted a real and serious cause of dismissal Cass. soc. February 23, 2005