Questions / Answers on the Labour Code

The legislator organizes the closure of companies and the dismissal of workers for structural or economic reasons, distinguishing between those who employ more than ten employees and others. While the smaller ones only submit to the individual dismissal procedure, companies with more than ten workers are invited to notify their intention to the staff and union delegates by providing them with the necessary information, at least at least date of the beginning of the dismissals. This is followed by discussions in the company, the results of which are recorded in a report that is sent to the workers’ representatives and the regional delegate of the Employment Department.

Dismissal can occur only after obtaining the authorization of the governor of the province or prefecture. It takes place for each establishment of the company taking into account, for each professional category of:

• Seniority.
• Professional qualification.
• Family expenses.

Dismissed workers remain a priority for re-employment in the same company.

The employee holding a CDI, is compensated on the occasion of his dismissal, on the one hand in relation to the enjoyment he may have of his rights to notice and annual leave, and on the other hand, function of seniority in the company, on the basis of which the severance pay due to employees who have completed at least six months in the enterprise is calculated.

Thus, a worker who has not benefited from the period of leave or paid annual leave receives a compensatory indemnity equivalent to the salary due for the period concerned.

In any case, he is entitled, after six months of service, to an equivalent severance pay for each year or part of a year of work in the enterprise at the value of the salary corresponding to:

• 96 hours per year of seniority for the first five years.
• 144 hours a year, between the 6th and the 10th grade.
• 192 hours a year, between the 11th and the 15th year.
• 240 hours per year, beyond fifteen years. It is allowed for the employee to cumulate this compensation with that which can be instituted for the loss of employment.

The code fundamentally altered the basis for assessing severance pay and reduced seniority by one to six months. It also provides for a unified procedure for the compensation of workers in case of unfair dismissal.

The severance pay is due to the employee, regardless of the employer’s responsibility for the termination of the employment contract since the dismissed employee is deprived of it only if he has been guilty of serious misconduct. On the other hand, when the employer is at fault on the occasion of this same dismissal, his employee can claim the compensation of the prejudice which he would have suffered in a subsequent way, either amicably, or by addressing the inspection. of work or by resorting to justice to make it known that this is an unfair dismissal.

Unlike the old legislation which left this power to the discretion of the court, the code is based on the criterion of the equivalent of one and a half months of salary per year or fraction of year of seniority as a referent for the award of damages, without their total value being greater than the equivalent of 36 months’ wages. This ceiling can therefore be used as an indicator for negotiation between the parties in the context of the conciliation procedure.

The wording of Article 41 suggests that an employee who is the victim of an unfair dismissal can not claim the severance pay but only the damages calculated on the basis of one and a half months of salary per year or part of a year. seniority at work. On the other hand, where the dismissal is lawful, he is entitled to the severance pay, unless he has been guilty of serious misconduct. With such an approach, he can not cumulate the two compensations. When an employee who has received the termination indemnity claims that he is the victim of an unfair dismissal, he may obtain from the court, on the condition that he persuades him of the merits of the claim, the difference between this compensation and the the value of the damages on the basis of one and a half months of salary per year or fraction of year of seniority.

It should be remembered that until the entry into force of the Labour Code, the dismissed employee received the severance pay in all circumstances, except in cases of serious misconduct and if the dismissal was found to be unfair by the employer. court, he retained this indemnity to which was added the damages assessed according to the gravity of the fault committed by the employer and its effects on the dismissed worker.

As part of the continuity of this path, it is possible to interpret the new provisions of the Code by considering that the legislator innovated in the mode of evaluation of the two compensations without modifying their nature and the faculty to cumulate them. Proponents of this view argue, therefore, that it is always possible for the wrongly dismissed employee to accumulate severance pay and damages, or even compensation for abrupt termination of the contract when he is deprived of notice. that they express by the formula of “triple indemnification”.

Jurisdictions go in this direction. This is disputed by a second line which is based in its analysis of Articles 41 and 53 on the preparatory work of the Code and especially on the agreement reached by the parties on this subject, which would have encouraged them to raise the rates severance pay and set the maximum amount of damages so as to limit the discretion of the court.

It may be noted, in this connection, that in addition to the somewhat equivocal wording of Article 41, Article 53, which deals with damages, also refers to “compensation for loss of employment for economic or technological reasons”. has not yet emerged, which leads to more ambiguity.

In order to limit litigation, Article 41.3 of the Code states that “an employee dismissed for a reason that he deems unfair may resort to the preliminary conciliation procedure provided for in the 4th paragraph of section 532 below, for the purpose of reinstatement or obtaining damages “.

The preliminary conciliation procedure that takes place before the labour inspector can lead to one of the following situations:

• The parties agree, either on the reinstatement of the employee, on the award of the severance pay, or on the total or partial compensation of the loss, in which case their transaction is final.
• The parties decide the settlement of the termination indemnity, without ruling on the unfairness of the dismissal, in which case it is possible to make this payment in the same way as in the same article and to retain the right to appeal justice to seek damages.
• they can not reach an agreement, the employee will then have to appeal to the competent court which must decide, when retaining the unfairness of the dismissal, either its reinstatement, or the payment of damages on the basis of a month and half of salary per year or fraction of year of seniority, to which could be added severance pay.

For this purpose, only seniority and average salary are considered in the past year. However, the severance pay is doubled in favor of employee representatives and union representatives in the company.

In the event of early termination of a fixed-term contract, the aggrieved party may claim from the party who made the decision, damages equivalent to the amount of wages that would remain to be collected until the expiry of the term of the contract, except where of serious fault or force majeure.

It is necessary to distinguish between the suspension of work which constitutes a material fact whose effects are limited to the evaluation of the actual working time and the payment of the corresponding salary or the compensation, if any, of a side ; and the suspension of the contract of employment, in the sense of the temporary neutralization of the effects attached to its performance as constituted by the performance of the work and the payment of the corresponding salary, on the other hand.

Article 32 lists the cases of temporary suspension of the contract of employment which determine the suspension of its effects. It also states that the fixed-term employment contract expires on its expiry regardless of the period of its suspension.