Employment law
Staff redundancies
Dismissal is deemed to be for personal cause when it is based on misconduct on the part of the employee. The grounds must be genuine and serious or, more generally, well-founded.
Justifying the dismissal
The reason is serious or sufficient where the breaches (grievances) alleged against the employee are likely to affect the proper functioning or continuation of the employment relationship. The reason is genuine where it is accurate, i.e. it actually occurred and you are able to prove your case.
Following the procedure
Disciplinary dismissal is subject to a procedure laid down by law. Any employer wishing to dismiss an employee who has been employed for more than three months is required to: to give the employee notice and to observe the notice period, and to inform the relevant labour inspector by registered letter, including details of the employee, the employer and the grounds for dismissal. The inspector has 15 days to issue an opinion.
Paying compensation
Except in cases of dismissal for gross misconduct, dismissal does not take effect immediately.
The employment contract continues throughout the notice period. You may exempt the employee from working during this period by paying compensation in lieu of notice.
In addition, the employee is entitled to severance pay if they have been employed for at least one year. This severance pay is calculated on the basis of the average monthly gross remuneration for the 12 months preceding the dismissal, by applying the following percentages to this average remuneration:
- 20 per cent for each of the first five years of service;
- 25% for each year from the 6th to the 10th inclusive;
- 30% for each year beyond the 10th.
Some collective agreements provide for more favourable rates.
This is the case, for example, with the mining collective agreement, which provides for rates of 30 per cent, 35 per cent and 40 per cent.
Finally, the employee is entitled to compensation for unused paid leave at the rate of two and a half days’ leave per month of actual service.
The issue of an employment certificate is mandatory. It must include the following details: the employee’s start date, their end date, the nature and dates of the successive posts held, and the professional category under the collective agreement to which the employee belongs.
Jargon
Notice period:This is the term used to refer to the period of notice. Its duration varies according to occupational categories and collective agreements.
Notification: This is the act of informing the employee of their dismissal. It takes effect when the employee receives the registered letter of dismissal.
Cases and application elsewhere: Disciplinary dismissal
Can a warning be a preliminary step in the dismissal procedure?
A warning is not a preliminary step in the dismissal procedure. The absence of a warning does not call into question the validity of a dismissal. In the event of a dispute, the courts assess the seriousness of the misconduct alleged by the employer.
The employer has disciplinary authority, which allows them to take all necessary measures to ensure the smooth running of the business.
They may discipline an employee for an act or behaviour they consider to be misconduct. The disciplinary action may range from a simple warning to dismissal. However, it must be proportionate to the alleged misconduct. The employer must assess the situation as a whole (length of service, the employee’s record, etc.).
As disciplinary sanctions are generally set out in the internal regulations, the employer must consult these before taking any decision on a sanction, if such regulations exist, because a sanction may only be imposed if it is provided for in the internal regulations, with the exception of disciplinary dismissal. If the sanction is not provided for in the internal regulations, it may be overturned.
The same conduct cannot be penalised twice. Furthermore, if the employee commits several breaches, you cannot impose a separate disciplinary sanction for each breach individually. You must assess the misconduct as a whole and penalise it collectively with a single sanction.
You must initiate disciplinary proceedings within the prescribed time limit, which is up to two months from the date on which you became aware of the misconduct (barring exceptions). And if a preliminary interview takes place, the disciplinary measure must be notified within the prescribed time limit, which is up to one month following the interview.