Dismissal for gross misconduct

Be careful to check that the fault is of sufficient gravity
Focus on the time limits of the dismissal procedure
Focus on precautionary dismissal

An employee no longer reports for work, has stolen from the cash register, assaulted a colleague or refused to comply with the instructions of his or her superior in the presence of the customer: what can be done?

➣ Definition of serious misconduct :

Serious misconduct is defined as any act which has never been the subject of a sanction (principle of the prohibition on sanctioning an individual twice for the same acts) attributable to the employee (Cass. Soc., 23 February 2005) constituting a breach of the employee's contractual or official obligations of such importance that it makes it impossible for the employee to remain with the company concerned during the period of theoretical notice (Cass. Soc., 26 February 1991).

CAUTION: Serious misconduct is not defined exhaustively, so the employer is faced with the difficulty of correctly qualifying the misconduct and determining it as serious misconduct.

➣ The steps to be followed:

- Fact checking :

The employer must first of all verify the reality of the facts so that the dismissal is objective and based on concrete elements.

To do this, it can conduct its survey : witnesses, emails, photos etc....

A informal meeting may even be organised to try to understand the facts that occurred and to allow the employee to explain himself before any dismissal.

It is advisable for several participants to be present and for minutes to be signed so that the organisation of this meeting cannot be prejudicial to the employer (the employee could quite easily allege harassment or go back on what he said).

- A possible precautionary layoff :

If the facts do not allow the employee to remain in the company, even temporarily, the employer may decide to impose a precautionary dismissal to the employee. A lay-off is not a disciplinary sanction. It is a provisional measure that is adopted until a final decision has been taken by the employer.

During the time the employee is away from the company, he or she is not paid.
This is why, if, at the end of the lay-off, serious misconduct is not accepted and the dismissal is pronounced on the basis of simple misconduct, the employer must pay the salary corresponding to the period of lay-off.

Given the serious nature of the misconduct, the dismissal must be carried out very quickly.

The two-month limitation period for sanctioning misconduct also applies to serious misconduct but, in practice, it is advisable to sanction very quickly in order to avoid the seriousness losing its importance (even with regard to the prud'hommaux advisors in the event that the employee brings an action against his former employer).

It is preferable not to set a time limit for the temporary lay-off. It is better to indicate that this measure will be maintained until a final decision is adopted.

The dismissal can be sent separately from the letter inviting the employee to the preliminary interview.

In this case, it is advisable to send the letter convening the preliminary interview very quickly to avoid a period of time that is too long and that the precautionary layoff is transformed into a disciplinary layoff.

This is why it is preferable that the precautionary layoff be indicated in the letter sent to the employee to summon him to a preliminary dismissal interview.

- The content of the letter of invitation to the preliminary dismissal interview :

The letter should indicate :

- its purpose, i.e. the pre-dismissal interview;
- the date and time of the interview ;
- the possibility for the employee to be assisted by an employee of the company or by an external advisor.

The invitation may be sent by registered mail with acknowledgement of receipt or delivered by hand.

The interview must take place at least 5 days after the receipt of the registered letter (be careful with the calculation of the time limit: public holidays, i.e. Sundays, are not counted in the calculation).

It should be noted that the preliminary interview can be postponed, even though it is very difficult to postpone in the case of disciplinary dismissal (for misconduct), given the statute of limitations linked to the misconduct.

- The letter of notification of dismissal :

A period of two working days must elapse between the date of the interview and the date on which the letter of dismissal is sent.

The content of the letter of dismissal :

- the letter must indicate the measure taken, i.e. dismissal for gross misconduct.

- mention the facts that led to this decision: it is important to be very precise. The facts mentioned in the letter of dismissal set the limits of the dispute as regards the faults of which the employee is accused(Cass. Soc., 21 Oct. 2003, no. 01-44.172)even if it is up to the judge to qualify the facts (Cass. soc., 20 February 2019, n°17-26532).

Setting the limits of the dispute allows for the verification that the employer has based his decision on objectively verifiable facts.

This will also allow the employer to better defend himself in case of an action initiated by the employee before the Conseil de Prud'hommes as it will be easier to demonstrate that the decision was taken on the basis of concrete elements.

Thus, before the industrial tribunal, the employer cannot rely on reasons other than those mentioned in the letter of dismissal.

- The letter also states:

- the effective date of dismissal ;

- the procedures for providing end-of-contract documents (final settlement, employment certificate, Pôle Emploi certificate);

- the arrangements for the recovery of the employee's personal belongings.

✓ The employment contract is terminated as from the date of first presentation of the registered letter with acknowledgement of receipt.

- Severance pay in the event of dismissal for gross misconduct :

Redundancy pay and compensation in lieu of notice are not paid to the employee. an employee who has been dismissed for serious misconduct.

He/she receives the compensation for paid holidays.

(See on this point Articles L. 1234-5 and L. 1234-9 of the Labour Code).

The Cabinet Cécile ZAKINE assists her clients in cases of dismissal for gross misconduct, to help company directors avoid the pitfalls of such a procedure.