LexInter | October 14, 2008 | 0 Comments

PINK SLIP

Having regard to article L. 122-14-2 of the Labor Code;

Whereas Mr X …, engaged on March 7, 1994 as seller prescriber by the company Patex Morin, to the rights of which the company Morin architecture is located, was dismissed on June 18, 1994 for ” inaptitude for the post occupied “;

Whereas, in order to reject the employee’s claim for compensation for dismissal without real and serious cause, the judgment under appeal states that the dismissal letter includes a sufficient statement of the reason for the dismissal with regard to Article L. 122- 14-2 of the Labor Code, making it possible to check the objective elements on which the dismissal is based; that the employer could dismiss the employee for professional inaptitude in the job which he occupied for the purposes of proposal of a determined product;

Whereas, however, the statement of a specific reason for dismissal does not constitute unfitness for the post occupied without indicating the physical or professional nature of the unfitness invoked;

That by ruling as it did, the Court of Appeal which moreover added to the letter of dismissal of the elements of fact that it did not set out, violated the aforementioned text;

For these reasons :

BREAK AND CANCELED, in all its provisions, the judgment rendered on September 14, 1998, between the parties, by the Lyon Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Grenoble.



Publication: Bulletin 2002 VN ° 72 p. 66

Contested decision: Lyon Court of Appeal, September 14, 1998

Cour de cassation
social chamber
Public hearing of Wednesday 25 April 2001
Appeal number: 98-43672
Not published in the bulletinRejection

President: M. WAQUET adviser, president

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE
IN THE NAME OF THE FRENCH PEOPLE

THE COUR DE CASSATION, SOCIAL CHAMBER, delivered the following judgment:

On the appeal brought by Mr X …,

in cassation of a judgment rendered on June 9, 1998 by the Poitiers Court of Appeal (social chamber), in favor of the Restaurant administrative association PTT, whose registered office is boulevard Joffre, 17078 La Rochelle Cedex 9,

defendant in cassation;

THE COURT, in the public hearing of March 6, 2001, where were present: Mr. Waquet, senior advisor acting as president, Mr. Funck-Brentano, referendum advisor rapporteur, MM. Ransac, Lanquetin, Bailly, advisers, Ms. Trassoudaine-Verger, Mr. Leblanc, referendum advisers, Mr. de Caigny, advocate general, Ms. Ferré, chamber clerk;

On the report of Mr. Funck-Brentano, referendum advisor, the observations of Mr. Delvolvé, lawyer of the association Restaurant administrative PTT, the conclusions of Mr. de Caigny, general counsel, and after having deliberated in accordance with the law;

On the combined pleas, as they appear in the request and are reproduced in the appendix to this judgment:

Whereas Mr. Bouchaïb lodged an appeal in cassation against the judgment of the Court of Appeal of Poitiers delivered on June 9, 1998;

But given that under cover of unfounded complaints of lack of legal basis, violation of the law, lack and contradiction of reasons and lack of response to conclusions, the appeal tends only to call for discussion, before the Court of Cassation, elements of fact and evidence, sovereignly assessed by the Court of Appeal which ruled, firstly, that the proof of an excuse of provocation for the facts which justified the disciplinary sanction was not reported, and, second, that the grievance referred to by the letter of dismissal based on behavior contrary to good morals, which is sufficiently precise to be materially verifiable , was established ; that it cannot therefore be accepted;

FOR THESE REASONS :

DISMISSES the appeal;

Condemns Mr X … to the costs;

Considering article 700 of the new Code of Civil Procedure, rejects the request of the Association Restaurant Administratif PTT;

Thus done and judged by the Court of Cassation, Social Chamber, and pronounced by the president in his public hearing of the twenty-fifth of April two thousand and one. 



Contested decision: Poitiers Court of Appeal (social chamber) of June 9, 1998


Cour de cassation
social chamber
Public
hearing of Tuesday March 28, 2000 Appeal number: 97-43923
Not published in the bulletinPartial reversal

President: M. GELINEAU-LARRIVET, president
 

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

THE COUR DE CASSATION, SOCIAL CHAMBER, delivered the following judgment:

On the appeal brought by Mr Abdel Y …, residing …,

in cassation of a judgment rendered on May 14, 1997 by the Nancy Court of Appeal (Social Chamber), in favor of:

1 / de MX …, taken in his capacity as commissioner for the execution of the disposal plan of the company Hazard et Cie, residing at 4, allée du Bois de Champelle, 54500 Vandoeuvre-lès-Nancy,

2 / AGS, whose registered office is …,

3 / of the CGEA, regional delegation, whose seat is …,

4 / Sonadia, a public limited company with registered office at …,

defendants in cassation;

THE COURT, in the public hearing of February 8, 2000, where were present: Mr. Gélineau-Larrivet, president, Mrs. Lebée, referendum adviser rapporteur, MM. Waquet, Carmet, Boubli, Ransac, Chagny, Bouret, Lanquetin, Coeuret, advisers, MM. Frouin, Richard de la Tour, Mrs Andrich, MM. Rouquayrol de Boisse, Funck-Brentano, referendum advisers, Mr Duplat, advocate general, Ms Ferré, chamber clerk;

On the report of Mrs. Lebée, referendum advisor, the observations of the SCP Parmentier and Didier, lawyer of Mr. X …, ex officio, and of the company Hazard et Cie, the conclusions of Mr. Duplat, general counsel, and after having deliberated in accordance with the law;

Whereas MY … was engaged, March 22, 1993, as administrative manager by the company Hazard, operating a car dealership; that, on September 27, 1994, the latter was the subject of a judicial reorganization procedure; that, by ordinance of 15 November 1994, the judge-commissioner authorized the dismissal of all employees; that, the 20 December 1994, the commercial court stopped the recovery plan by cession of the company;

that, December 22, 1994, MY … was dismissed by the administrator;

On the first plea:

Whereas the employee reproaches the contested judgment for having declared his request inadmissible;

But expected that it follows from the references to the judgment that the Court of Appeal did not declare the request inadmissible; that the means are lacking in fact;

But on the second way:

Considering articles L. 122-14-2 of the Labor Code, 45 and 63 of the law of January 25, 1985;

Whereas to reject the employee’s claim for damages for dismissal without real and serious cause, the judgment retains that by targeting in the dismissal letter the need for restructuring of the Hazard company which resulted from the opening of the recovery judicial, the receiver has sufficiently allowed to set the limits of a possible litigation and satisfied the legal obligation of motivation;

That by ruling thus, then, on the one hand, that the opening of judicial reorganization proceedings is not a cause of termination of employment contracts, on the other hand, that it resulted from its findings that the letter of dismissal did not refer to the order of the bankruptcy judge authorizing, during the observation period, dismissals for economic reasons presenting an urgent, inevitable and indispensable nature, nor to the judgment of the commercial court having adopted a plan of reorganization providing for redundancies for economic reasons, which resulted in that the reason for restructuring invoked in the letter of dismissal was incorrect and that, therefore, the dismissal was devoid of real and serious cause, the court ofappeal violated the above text;

And on the fifth plea:

Having regard to article L. 122-14-2, last paragraph, of the Labor Code;

Whereas in order to reject the employee’s claim for damages for violation of the rehiring priority, the judgment states that the absence of the mention of the rehiring priority in the dismissal letter did not, in this case , caused no harm;

Whereas, however, that the employer’s disregard of the provisions of article L. 122-14-2, last paragraph, of the Labor Code necessarily causes the employee damage which the judge must repair by compensation;

From where it follows that by ruling as it did, the court of appeal violated the aforementioned text;

FOR THESE REASONS :

BREAK AND CANCELED, but only in that he rejected the employee’s claims for damages for dismissal without real and serious cause and for violation of the rehiring priority, the judgment rendered on May 14, 1997, between the parties , by the Nancy Court of Appeal; puts, consequently, as for this, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Reims, otherwise composed;

Leaves each party to bear its own costs;

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed in the margin or following the partially overturned judgment;

Thus done and judged by the Court of Cassation, Social Chamber, and pronounced by the president in his public hearing on March twenty-eight, two thousand.

Contested decision: Nancy Court of Appeal (Social Chamber) of May 14, 1997 Titles and summaries:
EMPLOYMENT CONTRACT, EXECUTION – Employer – Judicial adjustment and liquidation – Cause of termination of the employment contract (no)

Cour de cassation
social chamber
Public hearing of Tuesday 2 March 1999
Appeal number: 96-45027
Published in the bulletinCassation.

Chairman: M. Waquet, acting senior advisor. ., president
Rapporteur: M. Boubli., adviser rapporteur
Advocate General: M. Kehrig., Advocate General
Advocate: M. Choucroy., attorney (s)

 

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE
On the two combined means:

Having regard to articles L. 122-14-2 and L. 321-1 of the Labor Code;

Expected according to the judgment under appeal, that Mr X … was dismissed by the society Maria Galland by a letter of July 5, 1993 reporting the “suppression of (his) post following restructuring of the company”;

Whereas in order to decide that this dismissal was without real and serious cause and to pronounce various sentences against the employer, the Court of Appeal notes on the one hand, that the reasons given are insufficiently precise which is equivalent to an absence of reason, d on the other hand, that the economic difficulties alleged by the company are not established and that the refusal of the Administration to grant aid from FNE to the company makes it possible to cast doubt on the reality of the alleged economic motive;

Whereas, however, first of all that the letter of dismissal which reports a suppression of employment following a restructuring of the company, which it is up to the judge to verify that it is intended to safeguard its competitiveness, is sufficiently motivated; that it sets the limits of the dispute;

Whereas then the Court of Appeal had to assess the merits of the reorganization with regard to the need to safeguard the competitiveness of the company, without limiting itself to deducing the absence of economic difficulties from the refusal of the Administration to benefit the company of an FNE convention;

From where it follows that by ruling as it did, the court of appeal violated the first of the aforementioned texts and ignored the requirements of the second;

FOR THESE REASONS :

BREAK AND CANCELED, in all its provisions, the judgment rendered on September 17, 1996, between the parties, by the Paris Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Versailles.


Publication: Bulletin 1999 VN ° 88 p. 64

Contested decision: Paris Court of Appeal, September 17, 1996

Quote:


Cour de cassation
Plenary assembly
Public
hearing of Friday, November 27, 1998 Appeal number: 96-44358
Published in the bulletinCassation.

First President: M. Truche., President
Rapporteur: M. de Givry, assisted by M. Maucorps, auditor., Rapporteur advisor
First Advocate General: M. Joinet., General
Counsel Lawyers: SCP Le Bret et Laugier (judgment n ° 1), M. Parmentier (judgment n ° 2)., Lawyer (s)


Cour de cassation
Plenary meeting
Public
hearing of Friday, November 27, 1998 Appeal number: 97-40423
Published in the bulletinCassation.

First President: M. Truche., President
Rapporteur: M. de Givry, assisted by M. Maucorps, auditor., Rapporteur advisor
First Advocate General: M. Joinet., General counsel
Lawyer: SCP Masse-Dessen, Georges et Thouvenin., Lawyer (s)
 

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

 

On the sole means:

Having regard to article L. 122-14-2 of the Labor Code;

Whereas, according to the text, that the employer is required to state the reasons or termination in the letter of termination referred to in Article L. 122-14-1; that failing the dismissal is without real and serious cause;

Whereas, according to the judgment under appeal ruling on dismissal after cassation, that Mr X …, hired on November 24, 1988 as a workshop technician by the company Afimec was dismissed for serious misconduct by letter of October 14, 1991, as follows: “… the dispute between you and the company Bois et Emballages, Afimec’s usual supplier concerns us since it is likely to mar the good commercial relations that we have with this company. the reasons which were expressed to you in our convening letter of October 8, and on which you did not see fit to explain to you, we hereby notify you of your dismissal … “;

Whereas to decide that the employer had satisfied the legal requirement of motivation, the court of appeal stated that the letter of dismissal clearly referred to the reasons given in the letter of invitation to the preliminary interview, that in addition it contained a brief statement of reasons clearly referring to the facts which, being materially verifiable, constituted a sufficiently precise reason for dismissal ;

That ruling, while the reference in the letter of dismissal on the grounds contained in the letter of convocation to the prior interview is not the statement of reasons required by law, and that alone, the mention the dispute between the employee and a supplier company was insufficient to meet legal requirements, the court of appeal violated the aforementioned text;

FOR THESE REASONS :

BREAK AND CANCELED, in all its provisions, the judgment rendered on December 2, 1996, between the parties, by the Lyon Court of Appeal; therefore returns the case and the parties to the state they were in before the said judgment and, to be upheld, refers them to the Dijon Court of Appeal.

Means produced by the SCP Masse-Dessen, Georges and Thouvenin, lawyer with the Councils, for Mr. Ilidio X ….

SINGLE MEANS OF BREAKING:

The plea accuses the judgment under appeal of having dismissed an employee, Mr. Ilidio X …, the exhibitor, of his requests for compensation for dismissal , notice and paid leave on notice, and compensation for dismissal without real and serious cause,

FOR THE REASONS THAT the obligation made to the employer by article L. 122-14-2 of the Labor Code to state the reasons for its decision in the letter of dismissal is intended to ensure the information of the employee on the reasons for his dismissal; that this legal requirement is met when the letter of dismissal includes a clear and unequivocal reference to the circumstantial reasons set out in the letter of convocation to the prior interview; that in the present case, the letter sent on October 8, 1991 to Mr. Ilidio X … to summon him to a preliminary interview set for the following October 11, to which he did not appear, then considered and preceded by a conservatory layoff was based on various reproaches which were stated therein; that Mr. Ilidio X … had then replied to his employer, by a letter dated October 10, in which he discussed the reality of the facts with which he was accused, by stating in particular that the problem mentioned in the letter of summons to the The preliminary interview did not concern Afimec in any way and announced that he would not come to the interview intended to collect his explanations because of an appointment with his lawyer to settle other problems existing in the company; that the letter of dismissalfor serious misconduct then notified on October 14, 1991 to Mr. Ilidio X … clearly referred to the reasons set out in the letter of October 8, under conditions free from any ambiguity, recalling that this employee had not seen fit to s ” explain the reasons that had been expressed in this invitation letter ; It further specified, thus responding to the written observations of the employee, that the dispute between the latter and the company Bois et Emballages, Afimec’s usual supplier, did indeed concern the employer because it was likely to taint the good commercial relations maintained with this company; that this motivation by reference to the reasons set out in the letterof October 8, 1991 initiating the dismissal procedure could not leave any doubt in the mind of the employee on the causes of his dismissal , while he had taken the initiative to respond in advance to the reproaches of his employer, without however, go to the preliminary interview to explain; that it thus satisfied the legal requirements; that Mr Ilidio X … is therefore not founded to invoke a lack of motivation of the letter of dismissal to conclude that this decision was not based on any real and serious cause; that in addition, the letterof October 14, 1991 did not only contain a reference to the detailed reasons set out in the correspondence of the previous October 8, but also a brief reminder of the facts on which this decision was based, in the form of a response to the written explanations of the employee; that there was indeed stated that, contrary to what Mr X … could imagine, the dispute which opposed him to the company Bois et Emballages concerned his employer since it was likely to taint the good commercial relations which he maintained with this company;

that this brief motivation was clearly referring to the facts of the previous October 4, long exposed in the letter of convocation to the prior interview and which, being materially verifiable, constituted a reason for dismissal sufficiently precise to meet legal requirements;

WHILE the one hand, pursuant to Article L. 122-14-2 of the Labor Code, the employer is required to state the reasons for the termination in the letter of termination referred to in Article L. 122-14-1; that failing, the dismissal is without cause real and serious, unimportant whatever reference it is to the contents of the letter of summons to the preliminary interview; that thus ruling, the Court of Appeal therefore violated the aforementioned provisions;

ALORS THAN, on the other hand, the reason carried in the letter of dismissal must be precise and be sufficient to itself; in the present case, the only reference to a dispute opposing the exhibiting employee to another company could not meet the requirements of Article L. 122-14-2 of the Labor Code, thus again violated.


Publication: Bulletin 1998 AP N ° 6 p. 10

Contested decision: Lyon Court of Appeal, of 2 December 1996

Case law precedents: A RECORD: Chambre sociale, 1994-11-30, Bulletin 1994, V, n ° 317, p. 217 (rejection: judgment n ° 1; partial cassation: judgment n ° 2) and the judgment cited.

Cour de cassation
Plenary assembly
Public
hearing of Friday, November 27, 1998 Appeal number: 96-40199
Published in the bulletinCassation.

First President: M. Truche., President
Rapporteur: M. de Givry, assisted by M. Maucorps, auditor., Rapporteur advisor
First Advocate General: M. Joinet., General
Counsel Lawyers: SCP Le Bret et Laugier (judgment n ° 1), M. Parmentier (judgment n ° 2)., Lawyer (s)
 

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE
STOP N ° 1

On the sole means:

Considering article L. 122-14-2 of the Labor Code, in its wording resulting from the law of December 30, 1986;

Whereas, according to this text, the employer is required to state the reason (s) for dismissal in the dismissal notification letter mentioned in article L. 122-14-1; that failing the dismissal is without real and serious cause;

Whereas, according to the judgment under appeal, ruling on referral after cassation, that Mrs. X …, engaged on November 1, 1976 as an accountant by the association Les Papillons Blancs du Finistère, then promoted to chief accountant, was dismissed for misconduct heavy on July 27, 1989;

Whereas to decide that the dismissal of the employee is based on serious misconduct, the judgment retains that the letter of dismissal meets the legal requirements since it clearly and directly refers to the specific reasons for dismissal set out in the letter of invitation the preliminary interview;

That in ruling thus, while the letter of dismissal does not mention any reason and that the reference to those contained in the letter of invitation to the preliminary interview does not constitute the statement of the reasons required by law, the court of appeal violated the above text;

FOR THESE REASONS :

BREAK AND CANCELED, in all its provisions, the judgment rendered on November 7, 1995, between the parties, by the Angers Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Caen.



Publication: Bulletin 1998 AP N ° 7 p. 11

Contested decision: Angers Court of Appeal of 7 November 1995


Case law precedents: TO BE RECOGNIZED: Plenary Assembly, 1998-11-27, Bulletin 1998, Plenary Assembly V, n ° 6, p. 10 (cassation) and the judgment cited.

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE


STOP N ° 2

On the sole means:

Having regard to article L. 122-14-2 of the Labor Code;

Whereas, according to the text, that the employer is required to state the reasons or termination in the letter of termination referred to in Article L. 122-14-1; that failing the dismissal is without real and serious cause;

Whereas, according to the judgment under appeal, ruling on referral after cassation, Miss X …, hired on May 1, 1987 as director by the Rhône-Alpes agricultural, fruit and vegetable economic committee, was dismissed for serious misconduct by letter of July 4, 1991;

Whereas the judgment holds that the employee cannot claim that the letter of dismissal does not include any reason whereas it refers to the letter of convocation to the preliminary interview stating very precisely the alleged facts;

That in ruling thus, while the letter of dismissal does not mention any reason and that the reference to those contained in the letter of invitation to the preliminary interview does not constitute the statement of the reasons required by law, the court of appeal violated the above text;

FOR THESE REASONS :

BREAK AND CANCELED, in all its provisions, the judgment rendered on July 1, 1996, between the parties, by the Lyon Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Dijon.

Publication: Bulletin 1998 AP N ° 7 p. 11
Case law precedents: TO BE RECOGNIZED: Plenary Assembly, 1998-11-27, Bulletin 1998, Plenary Assembly V, n ° 6, p. 10 (cassation) and the judgment cited.

Cour de cassation
social chamber
Public hearing of Wednesday April 2, 1997
Appeal number: 95-40390
Not published in the bulletinCassation

President: M. WAQUET adviser, president

 

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

THE COUR DE CASSATION, SOCIAL CHAMBER, delivered the following judgment:

On the appeal brought by Mr. Antonio X …, residing …, in cassation of a judgment delivered on November 22, 1994 by the Grenoble Court of Appeal (Social Chamber, industry section), for the benefit of the company Pegaz and Pugeat, building and public works company, general partnership, headquartered at …, defendant in the cassation;

The applicant invokes, in support of his appeal, the single means of cassation annexed to this judgment;

THE COURT, composed in accordance with Article L. 131-6, paragraph 2, of the Code of Judicial Organization, in the public hearing of February 19, 1997, where were present: Mr. Waquet, Senior Advisor acting as President, Mrs Girard-Thuilier, referendum adviser rapporteur, MM. Carmet, Ransac, Bouret, advisers, Mrs. Lebée, Mr. Besson, referendum advisers, Mr. de Caigny, advocate general, Miss Barault, chamber clerk;

On the report of Mrs. Girard-Thuilier, referendum advisor, the observations of the SCP Lyon-Caen, Fabiani and Thiriez, lawyer of Mr. X …, the conclusions of Mr. de Caigny, general counsel, and after having deliberated in accordance with the law ;

On the sole means:

Having regard to article L. 122-14-2 of the Labor Code;

Waited queu MX …, engaged in 1988 by the company Pegaz and Pugeat, was made redundant on July 24, 1992;

Whereas, to dismiss the employee from his claims for compensation for dismissal without real and serious cause, the Court of Appeal held that the dismissal of the employee, which took place due to the employee’s transfer to another company in the group, even if it is not formally in a redundancy procedure for economic reasons, has intervened in a situation where the group had to carry out rigorous management of human resources;

Whereas, however, according to article L. 122-14-2 of the Labor Code, the employer is required to state the reason (s) for the dismissal in the letter of notification of the dismissal mentioned in article L. 122 -14-1;

that, according to paragraph 2 of the aforementioned text, when the dismissal is pronounced for economic reasons, the letter of dismissal must state the economic reasons or the change of technology invoked by the employer;

that failing, the dismissal is without real and serious cause;

That by ruling as it did, while the letter of dismissal was limited to the refusal of the modification of the employment contract, which did not constitute a reason for dismissal, the court of appeal violated the text above;

FOR THESE REASONS :

BREAK AND CANCELED, in all its provisions, the judgment rendered on November 22, 1994, between the parties, by the Grenoble Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Lyon;

Orders the company Pegaz and Pugeat to pay the costs;

Considering article 700 of the new Code of Civil Procedure, rejects the request of the company Pegaz and Pugeat;

Said that on the diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines or following the broken judgment;

Thus done and judged by the Court of Cassation, Social Chamber, and pronounced by the president in his public hearing of April 2 nineteen hundred and ninety-seven.Contested decision: Grenoble Court of Appeal (Social Chamber, Industry section) of 22 November 1994

 


Cour de cassation
social chamber
Public
hearing of Wednesday April 2, 1997 Appeal number: 94-42867
Not published in the bulletinRejection

President: M. WAQUET adviser, president

 

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

THE COUR DE CASSATION, SOCIAL CHAMBER, delivered the following judgment:

On the appeal brought by the company Séna, société anonyme, whose registered office is …, in cassation of a judgment rendered on April 7, 1994 by the Rennes Court of Appeal (8th chamber, section A), in favor of Mrs. Arlette X …, remaining …, defendant to the cassation;

THE COURT, composed in accordance with Article L. 131-6, paragraph 2, of the Code of Judicial Organization, in the public hearing of February 19, 1997, where were present: Mr. Waquet, Senior Advisor acting as President, Mrs Lebée, referendum adviser rapporteur, MM. Carmet, Ransac, Bouret, advisers, Mrs. Girard-Thuilier, Mr. Besson, referendum advisers, Mr. de Caigny, advocate general, Miss Barault, chamber clerk;

On the report of Mrs. Lebée, referendum advisor, the observations of SCP Delaporte and Briard, lawyer of the Séna company, the conclusions of Mr. de Caigny, general counsel, and after having deliberated in accordance with the law;

On the sole means:

Whereas Mrs X …, hired on May 2, 1966 by the Citroën company as a file employee, last transferred to the Séna company, Citroën dealer, as commercial secretary, was dismissed for economic reasons on the 16 July 1991;

Whereas the employer criticizes the judgment under appeal (Rennes, April 7, 1994) for having said that the dismissal was without real and serious cause, whereas the presumption of illegitimacy of the termination, in the absence of reasons of the dismissal letter, yields, when the employee has been informed of the reasons justifying this decision, during the procedure or in response to his request to state the cause of the dismissal;

in the present case, following the request for enunciation of the criteria retained for the order of the dismissals of Mrs. X …, the employer had reminded the employee that the financial difficulties encountered and the loss of the status of concessionaire had resulted in the abolition of his post; that therefore, by declaring that the reason stated during the procedure could not justify dismissal, the Court of Appeal violated Article L. 122-14-2 of the Labor Code;

But expected that in the absence of statement of the grounds for dismissal, the latter is deemed to be without real and serious cause, regardless of the reasons invoked during the procedure or subsequently thereto; that the means is unfounded;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the Séna company to pay the costs;

Thus done and judged by the Court of Cassation, Social Chamber, and pronounced by the president in his public hearing of April 2 nineteen hundred and ninety-seven.



Contested decision: Rennes Court of Appeal (8th chamber, section A) of 7 April 1994


Cour de cassation
social chamber
Public hearing of Wednesday January 8, 1997
Appeal number: 94-42639
Published in the bulletinPartial annulment.

Chairman: M. Waquet, acting senior advisor. ., President
Rapporteur: Ms Tatu., rapporteur advisor
Advocate General: M. Terrail., Advocate General
Lawyer: SCP Lyon-Caen, Fabiani and Thiriez., lawyer (s)

 

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLEOn the first plea:

Having regard to articles L. 122-14-2 and L. 122-14-3 of the Labor Code;

Whereas Mr X …, in the service of the Morel company, as a driver, was dismissed by letter of May 6, 1992 for “continuous professional faults exposed in our letters of December 24, 1991, April 29, 1992 and April 30, 1992, resulting in a complete loss of confidence aggravated by a permanent casual behavior “;

Whereas, in order to decide that the dismissal was based on a real and serious cause, the judgment under appeal held that the comments made during the interview preceding the warning of April 30, 1992 reflected a breach of the bond of subordination inherent in the employment contract. job ;

That by so ruling, while the mention in the dismissal letter of “professional misconduct exposed in previous letters” does not constitute the statement of reasons required by law and that the words spoken by an employee during the interview prior to a disciplinary sanction cannot, except abuse, constitute a cause of dismissal, the court of appeal violated the aforementioned texts;

FOR THESE REASONS, and without there being any need to rule on the second plea:

BREAK AND CANCELED, except in its provisions relating to overtime, the judgment rendered on March 16, 1994, between the parties, by the Grenoble Court of Appeal; therefore returns the cause and the parties to the state they were in before the said judgment and, to be upheld, sends them back to the Lyon Court of Appeal.

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