The company and the employees: on the side of the courts

Professional maintenance: default

Under the terms of article L 6315-1 of the Labor Code, every two years the employee benefits from a professional interview with his employer devoted to his prospects for professional development, in particular in terms of qualifications and employment. In this case, between the October 2015 interview and his departure from the company at the end of December 2017, in the context of a contractual termination agreed in October 2017 and authorized by the labor inspector the following month, the employee had not benefited from a professional interview. But to be entitled to damages in this regard, it was up to him to provide proof of the damage that the lack of maintenance had caused him. (Versailles, May 19, 2021, RG no 19/00371)

Retirement: terms

Not having respected the deadline of three months before the employee’s birthday to question him on his intention to retire, the employer could not use the possibility of retirement during the following year. the date on which the person concerned reached the age of 65. The retirement, thus intervening in an irregular manner, produces the effects of a null dismissal, since based only on the age of the employee, and therefore discriminatory. (Paris, May 19, 2021, RG no 18/11533)

CDD: early termination

In the context of the early termination of a fixed-term contract, no text imposes a minimum period between the employee’s summons and the interview, nor does it require that the letter of convocation mentions the address of the inspection. labor or the departmental labor directorate. (Toulouse, July 9, 2021, RG n ° 19/03750)

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Social networks: privacy

Threatening remarks against colleagues posted on social networks, even if they would have disrupted professional life, cannot justify disciplinary action because they relate to the personal life of the employee. (Caen, August 11, 2021, RG n ° 20/00722)

Dismissal: serious misconduct

Serious fault is that which results from a fact or a set of facts personally attributable to the employee, which must be of such importance as to make it impossible for him to remain in the company. Dismissal for serious misconduct nevertheless implies an immediate reaction from the employer, the dismissal procedure having to be initiated within a limited period of time and the dismissal intervening rapidly. In this case, the employer must establish the grievances that he accuses his employee. The proof of the facts constituting the serious fault is incumbent upon him exclusively. And it is for the judge to assess, in the light of the evidence in the file, whether the facts invoked in the letter of dismissal are established, attributable to the employee, at the rate of the functions entrusted to him by his employment contract, and of sufficient gravity to justify his immediate eviction from the company, the doubt benefiting the employee. (Versailles, Room 17, September 1, 2021, RG n ° 21/00743)

Dismissal: professional insufficiency

Professional incompetence can be defined as the objective and lasting incapacity of an employee to correctly perform the work for which he is employed, that is to say in accordance with what one is justified in expecting. ” an employee employed for the same type of job and with the same qualification. Is based on a real and serious cause the dismissal for professional insufficiency of a building keeper characterized by the loss of the keys of a dwelling, the conservation at his home during a leave of the cellar keys allowing access to the circuit breakers, delay in dealing with various incidents… (Paris, June 10, 2021, RG no 19/10989)

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Professional incompetence constitutes a reason for dismissal when it is based on objective elements that can be verified with regard to the employee’s responsibilities. The alleged incompetence must be based on concrete elements and cannot be based on a purely subjective assessment of the employer. Professional insufficiency must be observed over a sufficiently long period so as not to appear as temporary or purely cyclical, to be directly attributable to the employee and not the consequence of a difficult economic situation. And it must not be linked to the employer’s own behavior or to its failure to adapt its employees to the evolution of jobs in the company. (Versailles, Room 17, September 1, 2021, RG n ° 17/05865)