Facts: The employee was notified by letter of his dismissal for gross misconduct on February 7, 2019. On the same day, i.e. the day the letter was sent, the HR department informed him of his dismissal by telephone, so that he would not have to attend a meeting and be dismissed in front of his colleagues. The employee took his case to the industrial tribunal, arguing that his dismissal had no real and serious cause because it had been verbal.
The Reims Court of Appeal ruled in favor of the employee, considering that informing the employee of his dismissal by telephone “is tantamount to dismissing an employee without stating the reasons, [which] cannot be made up for by the letter of dismissal sent subsequently, even if it is sent on the same day“. The employer appealed to the French Supreme Court, arguing in particular that the evidence provided by the employee did not establish that the appeal had taken place before the letter was sent.
Solution adopted by the Cour de cassation: The Social Chamber confirms that the dismissal was verbal and therefore lacked any real and serious cause: “In the light of these findings, the Court of Appeal, which gave reasons for its decision in the light of the factual and evidentiary elements submitted to it, deduced exactly that this verbal dismissal lacked any real and serious cause.
In 2009, the French Supreme Court ruled that a verbal announcement of dismissal, made after the letter of dismissal had been sent, did not constitute a prohibited verbal dismissal, even if the employee had not yet read the letter (Soc., May 6, 2009, no. 08-40.395).
In 2022, the Court of Cassation censured a decision handed down on appeal on the grounds that the lower courts should have investigated whether the letter notifying the employee of the termination of his contract had been sent to him before the telephone conversation (Soc., September 28, 2022, no. 21-15.606).
In the present case, the appeal decision contains no factual details concerning the sequence of events: it is not clear at what time the letter was sent and the telephone conversation took place. The appeal judgment suggests that the letter was sent after the telephone call, but this is clear only from the reasons given above.
What conclusions can be drawn from the ruling?
On reading the appeal decision, one might wonder why the Cour de cassation did not apply the 2022 solution, since it is not clear from the appeal decision that the letter was sent after the verbal interview.
However, as the ruling was given by a panel of judges, I don’t think it can be considered that the case law would be called into question.
Care should therefore be taken if it is decided, as seems essential, to inform the employee orally of the dispatch of his letter of dismissal on the day it is sent:
- Send the letter first,
- Ask the post office for an acknowledgement of posting with the day and time of the registered letter’s posting,
- Conduct the oral interview with 2 people and ask the person attending to draw up a certificate attesting to the time of the interview,
- During the interview, specify that the letter of dismissal was sent at such and such a time.
If 2. cannot be obtained, it is better to refrain…