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The option offered to the employee by the collective agreement to consult a joint committee, the referral of which suspends the employer’s decision, constitutes for the latter a basic guarantee which obliges the employer to inform him of this option. Otherwise, the dismissal is devoid of real and serious cause .
Overview of Disciplinary Dismissal Procedures: –
It is not rare that, in application of the principle of favour, collective agreements impose on the employer, in particular in disciplinary matters, the respect of a particular procedure of dismissal.
It appears from the case law that the consequences attached to non-compliance with this procedure depend closely on whether the procedural safeguards in question are considered by the judge as material safeguards, as illustrated by the present judgment of June 27, 2012. . the procedural guarantees offered to the employee by collective conventions and agreements or the staff regulations of public companies often consist of the establishment of joint bodies responsible for giving opinions on the penalties imposed on the employee. The social chamber recalls that the option offered to the employee by the collective agreement to refer to such a committee, the referral of which suspends the employer’s decision, constitutes a substantial guarantee for the employee (Soc. 28 March 2000, Bull. civ. V , n°136, September 16, 2008, news Dalloz, September 25, 2008, obs. B. Inès). It also confirms that the employer is required to inform the employee of his ability to consult these bodies, failing which the pronounced dismissal is devoid of real and serious cause (Soc. 21 Oct. 2008, Dalloz actualité, 30 Oct. 2008 , obs. L. Perrin; Dr soc. 2009. 119, note J. Savatier; RJS 2009. 44, n° 22).
Consequences of non-compliance with contractual procedures: –
The obligation to indicate in writing the reasons for the dismissal, which the collective agreement also provided for in this case, obviously does not have the same meaning for the Court of Cassation. Indeed, according to the Social Chamber, the irregularity relating to the employer’s failure to comply with his obligation to indicate in writing to the employee the reasons for the measure envisaged against him did not have the effect of depriving the interested in defending himself effectively before the commission given that he had been informed of the charges against him and that he had given answers to the members of the conciliation commission. In other words, the non-satisfaction of this obligation, just like the non-respect of a conventional deadline for referral to an advisory body (Soc. June 3, 2009, JCP S 2009. 1307, obs. Beyneix), does not constitute the violation of a material guarantee depriving the dismissal of a real and serious cause. The latter will only be judged as such on the condition that it is demonstrated that the irregularity had the effect of depriving the employee of the possibility of defending himself effectively before this body.
