No dismissal for a reason not listed in the collective agreement!

In principle, the employer may decide to dismiss an employee for a reason inherent to his or her person, or for a reason unrelated to the employee, linked to economic considerations. In all cases, the latter is constrained by a legal requirement: the reason must necessarily be based on a real and serious cause (articles L. 1232-1 and L. 1233-2 of the French Labor Code).

In addition to these legal provisions, the Cour de cassation admits that “Collective agreements can limit the possibility of dismissal to the causes and conditions which they determine and which do not make it impossible to terminate the employment contract”. (Cass. soc. October 24, 1995, no. 93-45.926; Cass. soc. December 3, 2002, no. 00-46.055). In other words, certain contractual provisions may restrict the grounds for dismissal that the employer may invoke.

In a ruling handed down on January 10, 2024 (Cass. soc. January 10, 2024, no. 22-19.857), the French Supreme Court (Cour de cassation) provides a new illustration in this area.

Revenons-y :

1. The facts of the case

In this case, an employee in charge of the security control unit at a company applying the collective agreement for urban public transport networks (CCNTU) was dismissed for professional incompetence.

The latter appealed to the industrial tribunal against her dismissal, deeming it to be without real or serious cause.

After losing all her claims at first instance, she won her case before the Court of Appeal hearing the case. The appeal judges considered that the reason given for the employee’s professional inadequacy was not covered by the CCNTU. In fact, the text makes no provision for the termination of employment contracts of permanent employees for reasons other than disciplinary, economic or incapacity. Consequently, the dismissal for professional incompetence, a reason not provided for by the CCNTU, was without real and serious cause.

The employer therefore appealed to the French Supreme Court, arguing that:

• on the one hand, that the provisions of article 17 of the CCNTU stipulating that “permanent employees may only be dismissed for serious misconduct following a reasoned opinion from the disciplinary board” only apply to dismissals for disciplinary reasons;
• on the other hand, that while the CCNTU includes provisions on disciplinary dismissal, economic dismissal or termination of contract ” as a result of reform (CAMR scheme), disability recognized by social security or recognized unfitness to drive“. these provisions do not limit the grounds for dismissal to these reasons alone.

2. The decision of the Cour de cassation

The French Supreme Court rejected the employer’s appeal and approved the appeal ruling.

According to the judges:

“Collective bargaining agreements may limit dismissals to the causes and conditions they determine and which do not make it impossible to terminate the employment contract“.

In this case, with regard to cases of termination, the CCNTU expressly provides:

• dismissal only for serious misconduct of permanent employees (art. 17);
• modification of operating conditions, resignation and collective dismissal (chapter VII);
• termination of the employment contract due to reform, disability recognized by social security or recognized unfitness to drive (art. 62).

These contractual provisions therefore limit the employee’s right to dismiss, so that he “may only be dismissed, independently of a disciplinary reason, for the reasons listed exhaustively“. The dismissal for professional incompetence was therefore declared to be without real or serious cause.

On this point, the Cour de cassation confirms its jurisprudence. It had already ruled that “dismissal for a reason other than those provided for in the collective bargaining agreement is not null and void, but merely devoid of any real and serious cause in the absence of a collective bargaining agreement expressly providing for such nullity” (Cass. soc. October 14, 1997, no. 97-40.033).

3. The scope of this decision

This decision calls for caution before initiating dismissal proceedings.

In practice, you need to be particularly vigilant and check whether any restrictions exist, as mentioned above.

On this subject, it is also important to pay close attention to the internal regulations in force, as well as to any job guarantee clauses included in employment contracts.