Facts: The employee was hired on November 6, 2008 as a full-time Human Resources Manager. Placed on continuous sick leave since November 18, 2013, she returned to work on a part-time therapeutic basis. In 2017, her employment contract was modified to part-time. She was dismissed for serious misconduct in 2019.
The employee maintains that her dismissal is null and void, and that it was decided following her denunciation of the moral harassment she claims to have suffered. She also points out that her preliminary interview was conducted by a person from outside the company.
Versailles Court of Appeal solution
The Court rejected the employee’s claims for recognition of moral harassment, nullity of her dismissal and breach of the employer’s safety obligation. It noted that the employer, who had not carried out an internal investigation, had nonetheless “taken a position on the subject” and answered the employee’s questions, thereby fulfilling its safety obligation. On the other hand, the company was condemned for dismissal without real and serious cause.
With regard to the claim made for the first time on appeal, seeking recognition of the irregular dismissal procedure, the Court ruled that it was inadmissible, as “(It) is not a claim for the same purpose as compensation for the damage caused by the nullity of the dismissal, nor is it a claim ancillary to the claims submitted to the first judges, but a new claim made on appeal, seeking compensation for a new damage, on a different legal basis“.
With regard to the reference salary used to determine the amount of compensation paid for dismissal without real and serious cause, the judges used the average of the last twelve or three months prior to the work stoppage, during which the employee was working part-time on a therapeutic basis.
Solution by the Cour de cassation
With regard to the employer’s breach of its safety obligation, the judges state that this argument is unfounded, and that the Court of Appeal found that the employer had taken sufficient measures to protect the employee’s health and safety, notwithstanding the absence of an internal investigation.
However, the appeal ruling was censured on two points.
On the one hand, with regard to the claim for procedural irregularity, the Social Division quashed the decision, citing articles 565 and 566 of the French Code of Civil Procedure. The judges state that “in so deciding, without investigating, even of its own motion, whether the claim for compensation for irregularity of the dismissal procedure was not the consequence or the necessary complement of the employee’s claim that the dismissal was principally null and void, and secondarily without real and serious cause, the Court of Appeal failed to provide a legal basis for its decision“.
On the other hand, with regard to the basis used by the trial judges to calculate the amount of compensation for dismissal without real and serious cause, the judges censured the solution, citing articles L1132-1 of the French Labor Code (in the version applicable to this case), and articles L1234-5, L1235-3, L1234-9 and R1234-4 of the same code. They state that “the combination of these texts means that when an employee, due to his state of health, works part-time on a therapeutic basis when he is dismissed, the reference salary to be taken into consideration for the calculation of the indemnity in lieu of notice as well as the indemnity for dismissal without real and serious cause is the salary received by the employee prior to the part-time work on a therapeutic basis and the sick leave that preceded it, and that the basis for calculating the legal or contractual redundancy indemnity is, depending on the formula most advantageous to the employee, that of the last twelve or three months preceding the therapeutic part-time work and the sick leave, if any, preceding it. “
Remarks :
On the breach of the safety obligation, the Advocate General concluded that the case should be quashed, stressing that by failing to conduct an internal investigation, the employer could be accused of “culpable abstention” (page 9 of the Opinion). This solution appears to be a step back from a previous decision in 2019 (Cass. soc., November 27, 2019, 18-10.551), in which the Court overturned an appeal decision which had dismissied an employee’s claim for damages for breach of her safety obligation on the grounds that, as no repeated acts of moral harassment had been established, the employer could not be reproached for failing to carry out an investigation.
With regard to the reference salary used to calculate the amount of compensation for dismissal without real and serious cause, the Cour de cassation follows the Advocate General’s opinion that the period during which the employee was on part-time medical leave, and therefore the “adverse effects of the employee‘s state of health”, should be “neutralized” (p. 13-14 of the Opinion).
The Chambre sociale has thus extended the solution it has already applied to the calculation of an employee’s entitlement to the special profit-sharing reserve (Soc., September 20, 2023, no. 22-12.293) to include compensation for dismissal without real and serious cause.