DISMISSAL OF AN EMPLOYEE ABSENT FOR ILLNESS AND DEFINITIVE REPLACEMENT
LexInter | May 5, 2010 | 0 Comments

DISMISSAL OF AN EMPLOYEE ABSENT FOR ILLNESS AND DEFINITIVE REPLACEMENT

DISESE

Court of Cassation
Social Chamber

Public hearing of November 10, 2004 Partial reversal


Appeal number: 02-45156
Published in the bulletin

President: M. SARGOS

FRENCH REPUBLIC
 

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

 

THE COURT OF CASSATION, SOCIAL CHAMBER, delivered the following judgment:

 

 

On the single means, taken in its first branch:

 

Having regard to article L. 122-14-3 of the Labor Code;

 

Whereas Mrs. X …, which occupied the functions of accountant employee of the company Express national service, was in stoppage of work for disease from November 2, 1998; that the company dismissed her, the 15 December 1999, with a notice until 17 March 2000, on the grounds that his absence prolonged disorganized the accounting service of the company and that it was necessary to provide for his replacement definitive; that, disputing the merits of his dismissal, Mrs. X … seized the industrial tribunal of various demands;

 

Whereas while noting that Ms. X … had actually been replaced several months after her dismissal, the court of appeal decided that it was justified since it had been provided for the replacement of the employee ;

 

Whereas, however, the final replacement of an employee absent due to an illness or a non-professional accident must take place within a reasonable period of time after the dismissal, a period that the trial judges decide on sovereignty taking into account the specificities of the company and the job concerned, as well as the steps taken by the employer with a view to recruitment;

 

That the Court of Appeal, which did not carry out this research, has therefore not given a legal basis for its decision;

 

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

 

BREAK AND CANCELED, but only in that it rejected the employee’s claim for damages for dismissal without real and serious cause, the judgment rendered on June 27, 2002, between the parties, by the Court of Appeal of Paris; returns, 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 Versailles;

 

Condemns the company Express national service to the costs;

 

Considering article 700 of the new Code of Civil Procedure, rejects the request of the company Express national service;

 

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines 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 November ten, two thousand and four.

 

 



Contested decision: Paris Court of Appeal (21st chamber, section B) 2002-06-27


 


Court of Cassation
Social Chamber

Public hearing of November 10, 2004 Partial reversal


Appeal number: 02-45187
Published in the bulletin

President: M. SARGOS

FRENCH REPUBLIC
 

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

 

THE COURT OF CASSATION, SOCIAL CHAMBER, delivered the following judgment:

 

 

On the sole means:

 

Having regard to articles L. 122-14-2 and L. 122-45 of the Labor Code;

 

Whereas under the first of these texts, the employer is required to state the reason (s) for dismissal in the dismissal letter; that if the second prohibiting the dismissal of an employee in particular because of his state of health or his handicap, except inaptitude noted by the occupational physician within the framework of Title IV of Book II of this same Code does not oppose the dismissal motivated, not by the state of health of the employee, but by the objective situation of the company whose operation is disrupted by the prolonged absence or repeated absences of the employee, the latter can however only be dismissed if these disturbances result in the need for the employer to replace him permanently; that

 

Whereas Mr X …, engaged on January 28, 1991 by the company BTE Toutelect as team leader was in work stoppage for illness as of January 6, 2000; that he was dismissed on September 27, 2000 by a letter invoking the need to ensure, for the proper functioning of the company, his replacement in his job; that the employee seized the industrial tribunal;

 

Whereas to condemn the employer to pay the employee a sum as damages for dismissal without real and serious cause, the judgment retains that the letter of dismissal is insufficiently motivated;

 

That by ruling as it did, then that is sufficiently motivated the letter of dismissal which mentions the need for the replacement of the employee absent because of his state of health and that it was up to the judges of the merits to verify that this replacement was final, the Court of Appeal violated the aforementioned texts;

 

FOR THESE REASONS :

 

BREAK AND CANCELED, but only in its disposition having condemned the employer to pay damages for dismissal without real and serious cause, the judgment delivered on June 20, 2002, between the parties, by the Orléans Court of Appeal ; returns, 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 Bourges;

 

Condemns Mr X … to the costs;

 

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines 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 November ten, two thousand and four.

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