Disciplinary dismissal: a strict one-month deadline for giving notice of termination
Cass. Soc. 28-09-2022 n° 21-15.136 F-D, U. c/ Sté Novatec Guadeloupe
In a decision of 28 September 2022, the Court of Cassation specifies that notification of dismissal on disciplinary grounds must take place within one month of the preliminary interview, even if the employee did not attend, failing which the dismissal is devoid of real and serious grounds.
In this case, an employee who was summoned to a preliminary interview on 21 November did not show up on the day indicated.
A new interview was scheduled by the employer on 14 December, and she was notified of her dismissal on 22 December.
Challenging the validity of her dismissal, she brought various claims before the labour court, which were ultimately dismissed.
An appeal is lodged.
The employee claims that the notification of her dismissal on 22 December was late. In this respect, it would be devoid of real and serious cause.
It states that the notification must be made within one month from the date of the first missed prior interview. It is irrelevant whether the employer has decided to postpone it to a later date on his own initiative.
This is not the opinion of the Court of Appeal, which considers that the said period begins to run the day after the date of the first interview, i.e. 22 November, and expires at midnight on 22 December.
An appeal is lodged.
Does the legal time limit for notification of dismissal on disciplinary grounds run from the day of the preliminary interview?
According to the Court of Cassation, the time limit for notification of dismissal on disciplinary grounds does indeed run from the date of the preliminary interview, and not the following day, and “expires on the day of the following month bearing the same date as the day of the preliminary interview for dismissal”. In this case, this time limit expired on 21 December at midnight, so that the notification made on 22 December was late, depriving the dismissal of real and serious grounds.
As a reminder, this rule must be respected, even when the employee regularly summoned to the interview is absent (Cass. Soc. 6 January 1999 No. 96-44.064; Cass. Soc. 14 September 2044 No. 03-43.796). And even if the employer decides, on his own initiative, to postpone the interview (Cass. Soc. 20 May 2014 n°12-28.046; Cass. Soc. 17 April 2019 n°17-31.228).
Only if the employee is unable to attend the interview or if he/she requests a postponement can the notification period be shifted by one month to the new interview date (Cass. Soc. 7 June 2006 n°004-43.819).
This is a strict position, which can only encourage people not to postpone a preliminary interview on their own initiative, unless they have a good grasp of all the deadlines.