disciplinary law
LexInter | June 20, 2002 | 0 Comments

DISCIPLINARY LAW

LABOR CODE (Legislative Part)
Sub-section 2: Employee protection and disciplinary law
Article L122-40
(inserted by Law n ° 82-689 of August 4, 1982 art. 1 Official Journal of August 6, 1982)Any measure, other than verbal observations, taken by the employer following an employee’s behavior considered by him to be at fault, constitutes a sanction , whether this measure is of such a nature as to immediately or not affect the employee’s presence in the workplace. company, function, career or remuneration. DISCIPLINARY SANCTIONS

whereas the measure prohibiting access to the Vélizy store, then the transfer to the Kremlin-Bicêtre, were based on behavior likely to be detrimental to the success of a commercial operation, i.e. a fault, which resulted in that these measures had a disciplinary character, the Court of Appeal, which was therefore to investigate whether they were justified by a fault, did not give legal basis to its decision;

Ch. Soc. January 15, 2002

Disciplinary sanctions

Warning

The blame

The layoff

The mutation

The demotion

Disciplinary dismissal

DISMISSAL AND CRIMINAL OFFENSES COMMITTED BY THE EMPLOYEE

Article L122-41
(Law n ° 73-4 of January 2, 1973 Official Journal of January 3, 1973) (Law n ° 78-753 of July 17, 1978 Official Journal of July 18, 1978) (Law n ° 82-689 of August 4, 1982 art. 1 Official Journal of August 6, 1982) (Law n ° 86-1320 of December 30, 1986 art. 5 II Official Journal of December 31, 1986)No sanction may be imposed on the employee without the latter being informed at the same time and in writing of the grievances against him.
When the employer plans to take a sanction, he must summon the employee, indicating to him the purpose of the summons, unless the envisaged sanction is a warning or a sanction of the same nature which has no impact, immediate or not, on the presence in the company, the function, the career or the remuneration of the employee. During the interview, the employee may be assisted by a person of his choice belonging to the personnel of the company; the employer indicates the reason for the envisaged sanction and collects the employee’s explanations. The sanction cannot intervene less than one clear day nor more than one month after the day fixed for the interview. It must be motivated and notified to the person concerned.

When the employee’s actions made it essential to take a protective measure layoff with immediate effect, no definitive sanction relating to this behavior may be taken without the procedure provided for in the previous paragraph having been observed.

* NOTE – Law 86-1320 of December 30, 1986 art. 22: the provisions of this law are applicable to dismissal procedures initiated as of January 1, 1987. *

EMPLOYEE DEFENSE RIGHTS

 

 

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DISMISSAL_FOR_GRAVE_FAULT_AND_MISE_A_PIED_CONSERVATOIRE

EXEMPTIONS_FROM_WORK_AND_CONSERVATORY_FOOT_FOOT

Conventional procedures, vn e under Cass. Soc. , October 31, 2000, Revue de Jurisprudence Sociale (RJS), n ° 1, 01/01/2001, pp. 26-27

REMINDER OF THE INTERNAL REGULATIONS

v. INTERNAL RULES

 

Article L122-42
(Law n ° 73-4 of January 2, 1973 Official Journal of January 3, 1973) (Law n ° 78-753 of July 17, 1978 Official Journal of July 18, 1978) (inserted by Law n ° 82-689 of August 4, 1982 art . 1 Official Journal of August 6, 1982)The has mendes or similar provisions are prohibited.
Any contrary provision or stipulation is deemed unwritten.

* Note – Labor Code L. 152-1-5: criminal sanction. *

FINES AND PECUNIARY SANCTIONS

Inability for the employer to adapt remuneration according to professional capacities; Note under judgment of the Court of Cassation, social chamber, July 3, 2001, Mme A against Sté Trouvay and Cauvin, Puigelier, Catherine, JCP E Semaine Juridique (corporate edition), n ° 6, 02/07/2002, pp. 282-286

pecuniary_responsibility_of_ a_salary_with_ regard_of_the_ employer_and_deterioration_of_a_ badge

Article L122-43
(inserted by Law n ° 82-689 of August 4, 1982 art. 1 Official Journal of August 6, 1982)In the event of a dispute, the men’s prudential council assesses the regularity of the procedure followed and whether the facts alleged against the employee are such as to justify a sanction. The employer must provide the men’s prudential council with the elements that it has. retained to take the sanction. In view of these elements and those which can be provided by the employee in support of his allegations, the prudent council forms its conviction after having ordered, if necessary, all the investigative measures that it requires. considers useful. If a doubt remains, it benefits the employee.

The prudent council can cancel a sanction irregular in the form or unjustified or disproportionate to the committed fault.

The provisions of the preceding paragraphs are not applicable in the event of dismissal.

LABOUR COURT

 


Article L122-44
(inserted by Law n ° 82-689 of August 4, 1982 art. 1 Official Journal of August 6, 1982)No fault may in itself give rise to the initiation of disciplinary proceedings beyond a period of two months from the day on which the employer became aware of it, unless this fact gave rise in the same time limit for the exercise of criminal proceedings.

No sanction more than three years prior to the initiation of disciplinary proceedings may be invoked in support of a new sanction.

LIMITATION PERIOD

 

DISCIPLINARY_DISMISSAL_IN_PERIOD_OF_SUSPENSION_OF_WORK_CONTRACT

Article L122-45
(Law n ° 82-689 of August 4, 1982 art. 1 Official Journal of August 6, 1982 (Law n ° 85-10 of January 3, 1985 art. 24 Official Journal of January 4, 1985) (Law n ° 85-772 of 25 July 1985 art. 109 Official Journal of July 26, 1985) (Law n ° 85-773 of July 25, 1985 art. 5 Official Journal of July 26, 1985) (Law n ° 90-602 of July 12, 1990 art. 9 Official Journal of July 13, 1990) Law n ° 92-1446 of December 31, 1992 art. 27 Official Journal of January 1, 1993) (Law n ° 2001-1066 of November 16, 2001 art. 1 I Official Journal of November 17, 2001)No person may be excluded from a recruitment procedure or from access to an internship or a period of training in a company, no employee may be sanctioned, dismissed or be the subject of a discriminatory, direct or indirect, in particular in terms of remuneration, training, reclassification, assignment, qualification, classification, professional promotion, transfer or renewal of contract due to origin, sex, customs, their sexual orientation, their age, their marital status, their membership or non-membership, true or supposed, to an ethnic group, nation or race, their political opinions, their trade union or mutualist activities,of his religious convictions, his physical appearance, his surname or, except in the event of incapacity declared by the occupational physician under Title IV of Book II of this Code, due to his state of health or his handicap.
No employee may be sanctioned, dismissed or be the subject of a discriminatory measure referred to in the previous paragraph by reason of the normal exercise of the right to strike.
No employee may be sanctioned, dismissed or be the subject of a discriminatory measure for having testified to the actions defined in the preceding paragraphs or for having reported them.
In the event of a dispute relating to the application of the preceding paragraphs, the employee concerned or the candidate for recruitment, for an internship or for a period of in-company training presents facts suggesting the existence of direct discrimination or indirect. In view of these elements, it is for the defendant to prove that its decision is justified by objective elements unrelated to any discrimination. The judge forms his conviction after having ordered, if necessary, all the investigative measures he considers useful.
Any contrary provision or act with regard to an employee is automatically void.
The dismissal of an employee following the sending of a private electronic mail, Benalcazar, Isabelle de, Droit du Travail et de la Sécurité Sociale, n ° 1, 01/01/2001, pp. 4-7
Article L122-45-1
(inserted by Law n ° 2001-1066 of November 16, 2001 art. 2 I Official Journal of November 17, 2001)The representative trade unions at the national or departmental level, with regard to the overseas departments, or in the company may bring any legal action arising from Article L. 122-45, under the conditions provided for by the latter, in favor of a candidate for a job, a training period or a period of training in a company or an employee of the company without having to justify a mandate from the person concerned, provided that the latter he has been notified in writing and has not objected to it within fifteen days from the date on which the trade union organization notified him of its intention. The person concerned can always intervene in the proceedings initiated by the union.
Associations regularly constituted for at least five years to fight against discrimination may bring any legal action arising from Article L. 122-45, under the conditions provided for therein, in favor of a candidate for a employment, an internship or a period of training in a company or an employee of the company, provided that they can be justified by the written agreement of the person concerned. The latter can always intervene in the body initiated by the association and put an end to it at any time.
Article L122-45-2
(inserted by Law n ° 2001-1066 of November 16, 2001 art. 2 II Official Journal of November 17, 2001)The dismissal of an employee following a legal action brought by this employee or in his favor on the basis of the provisions of this code relating to discrimination, when it is established that the dismissal has not been effective. no real and serious cause and is in fact action taken by the employer because of the legal action. In this case, reinstatement is by law and the employee is regarded as having never ceased to hold his job.
If the employee refuses to continue with the performance of the employment contract, the industrial tribunal allocates him compensation which may not be lower than the wages of the last six months. In addition, the employee also benefits from an indemnity corresponding to the termination indemnity provided for by Article L. 122-9 or by the applicable collective agreement or agreement or the employment contract. The second paragraph of article L. 122-14-4 is also applicable.
Article L122-45-3
(inserted by Law n ° 2001-1066 of November 16, 2001 art. 3 Official Journal of November 17, 2001)Differences in treatment based on age do not constitute discrimination when they are objectively and reasonably justified by a legitimate objective, in particular by employment policy objectives, and when the means to achieve that objective are appropriate and necessary .
These differences may consist in particular of:
– the prohibition of access to employment or the establishment of special working conditions in order to ensure the protection of young people and older workers;
– the setting of a maximum age for recruitment, based on the training required for the post concerned or the need for a period of

Article L122-46
(Law n ° 92-1179 of November 2, 1992 art. 1 Official Journal of November 4, 1992) (Law n ° 2001-397 of May 9, 2001 art. 8 I, II, III Official Journal of May 10, 2001)No employee, no candidate for recruitment, for an internship or for a training period in a company may be sanctioned, dismissed or be the subject of a discriminatory measure, direct or direct, in particular in terms of remuneration, training, reclassification, assignment, qualification, classification, professional promotion, transfer or renewal of contract.
for having suffered or refused to suffer the harassment of an employer, his representative or any person who, abusing the authority conferred on him by his duties, gave orders, uttered threats, imposed constraints or exercised pressure of any kind on this employee in order to obtain favors of a sexual nature for his benefit or for the benefit of a third party.
No employee may be sanctioned, dismissed or be the subject of a discriminatory measure for having testified to the acts defined in the preceding paragraph or for having reported them.
Any contrary provision or act is automatically void.

* Note: labor code L742-8: the provisions of article L. 122-46 are applicable to seafarers. *


Article L122-47
(inserted by Law n ° 92-1179 of November 2, 1992 art. 1 Official Journal of November 4, 1992)Any employee who has carried out the actions defined in article L. 122-46 is liable to a disciplinary sanction.

Article L122-48
(inserted by Law n ° 92-1179 of November 2, 1992 art. 1 Official Journal of November 4, 1992)It is the business manager’s responsibility to take all necessary measures to prevent the acts referred to in the two preceding articles.

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