unjustified dismissal if the disorganization of the service is targeted. By Marie-Paule Richard-Descamps, Lawyer.

The provisions of the Labor Code.

Article L1132-1 which generally prohibits discrimination, in its version in force since June 23, 2020, provides that:

No person may be excluded from a recruitment or appointment procedure or from access to an internship or a training period in a company, no employee may be sanctioned, dismissed or be the subject of a discriminatory measure. , direct or indirect, in particular with regard to remuneration, incentive measures or distribution of shares, training, reclassification, assignment, qualification, classification, professional promotion, transfer or renewal of contract because of their origin, sex, mores, sexual orientation, gender identity, age, marital status or pregnancy, genetic characteristics, particular vulnerability resulting from its economic situation, apparent or known to its author, its membership or non-membership, real or supposed, to an ethnic group, a nation or an alleged race, its political opinions, its union activities are or mutual members, of his exercise of an elective office, of his religious convictions, of his physical appearance, of his surname, of his place of residence or of his bank domiciliation, or due to his state of healthloss of autonomy or of his disabilityhis ability to express himself in a language other than French.

Facts and procedure.

An employee hired on October 25, 2000 by Federal Express Corporation (Fedex Corporation), and who last performed the duties of ramp agent, was dismissed for real and serious cause on July 9, 2008.

He appealed against the judgment delivered on September 18, 2019 by the Paris Court of Appeal, in the dispute between him and his former employer.

The employee criticized the judgment for having dismissed his request to have his dismissal judged without real and serious cause and his claim for damages.

He invoked that the provisions of article L1132-1 of the Labor Code which do not preclude dismissal for reasons, not by the state of health of the employee, but by the objective situation of the company whose operation is disrupted by the prolonged absence or repeated absences of the employee, if however these disruptions lead to the need for the employer to proceed to the permanent replacement of the employee by hiring another employee.

He criticized the Court of Appeal for having dismissed his requests to have his dismissal judged without real and serious cause and to award him damages in this respect, without characterizing that the employee’s absences had disrupted the functioning of Fedex corporation.

The position of the Court of Cassation.

The Social Chamber censures the decision of the Court of Appeal under Article L1132-1 of the Labor Code, in its wording prior to Law No. 2012-954 of August 6, 2012:

This text, which prohibits the dismissal of an employee in particular because of his state of health or his disability, does not oppose dismissal for reasons, not by the state of health of the employee, but by the objective situation of the company whose functioning is disturbed by the prolonged absence or repeated absences of the employee.

To dismiss the employee’s request for dismissal without real and serious cause, the judgment holds that the employer had to compensate for the absence of the employee by an internal organization, and that he justifies the definitive replacement of that -this.

” En so ruling, when it had noted that the letter of dismissal aimed at the disorganization, not of the company, but of the service to which the employee belonged, the Court of Appeal violated the aforementioned text “.

Conclusion.

The employer who intends to justify the dismissal of an employee because of his prolonged absence or his repeated absences for health reasons must imperatively justify the dismissal by invoking in the letter of dismissal:

the objective situation of the company Where of a service of an essential nature whose operation is disrupted by the prolonged absence or repeated absences of the employee

which lead to the need to carry out the permanent replacement of the employee by hiring of another employee.

What the employer must be able to provide proof of.

Otherwise, he exposes himself to the judges considering the dismissal devoid of real and serious cause and ordering him to pay damages.

The dismissal may, where appropriate, be declared bad in case of discrimination proven to be disease-motivated.

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