Par frederic.chhum le 19/10/16

Maître Frédéric CHHUM, is quoted in :

CHHUM AVOCATS is a law firm specialized in Labour law based in Paris and in Nantes (France).

CHHUM AVOCATS intervenes for employees, intermittent workers (intermittents du spectacle), journalists, executives (cadres), senior executives (cadres dirigeants).

All lawyers (avocats) at CHHUM AVOCATS are bilingual French / English.

Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)

. Paris : 4 rue Bayard 75008 Paris - Tel: 01 42 56 03 00 ou 01 42 89 24 48
. Nantes : 41, Quai de la Fosse 44000 Nantes -  Tel: 02 28 44 26 44

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Par frederic.chhum le 18/03/11

When an employee is dismissed, three questions occur:

- Is my dismissal letter challengeable?

- Which Conseil de prud'hommes should I refer to?

- How much can I sue for and obtain in case of unfair dismissal?

1) What information must be contained in the dismissal letter?

One dismissal (personal or economic) should be based on a real and serious cause (art. L. 1232-1 and L. 1233-2 of the Labor Code).

The dismissal letter is the key point of the dismissal procedure.

Indeed, it sets the limits of the litigation (Cass. soc. March 2nd, 1999, Cass. soc. February 27th, 2008).

Judges cannot examine possible grounds that can justify dismissal, if such grounds do not appear in the dismissal letter.

If the employer does not state any specific ground in the dismissal letter, this equates to a lack of grounds (Cass. soc. November 20, 1990), the dismissal would be without real and serious cause; the employee can then obtain damages in Court.

In addition, the indication of the grounds cannot be made by reference: thus, the reference in the letter of dismissal of "misconduct stated in previous correspondence" is not a statement of grounds required by French law (Cass. Soc. January 8th, 1997).

It is the same for a reference to the grounds stated in the letter fixing an appointment to the preliminary discussion before dismissal (Cass. Ass. Plen. November 27th, 1998).

Moreover, the ground stated in the dismissal letter must be "sufficiently specific to be verifiable” (Cass.soc. April 25, 2001).

Thus, the grounds were too judged as too “vague”:

- 'Refusal to employment contract's amendment" (Cass. soc. April 2nd, 1997);

- "Necessity for Restructuring" (Cass. soc. March 28th, 2000);

- "Incapacity to held job" (Cass. soc. February 20th, 2002).

On the other hand, were considered as sufficiently motivated the following grounds:

- "Removing jobs following a restructuring of the company” (Cass. soc. March 2, 1999);

- "Conduct contrary to morality" (Cass. soc. April 25, 2001).

Finally, the employee must check the dispatch date of the letter of dismissal: indeed, Article L. 1232-6 of the Labor Code stipulates that the letter of dismissal cannot be sent within two business days after the date of the preliminary discussion before dismissal.

2) Which Conseil de prud'hommes should I refer to?

In principle, the employee must refer to the court of the “defendant's domicile”, which means the Conseil de prud'hommes of his/her employer's head office.

The rule of Conseil de prud'hommes' territorial jurisdiction, under section A. 1412-1 of the Labor Code, is as follows:

- When the employee works in a site, the Conseil de prud'hommes is competent in whose jurisdiction the site is located;

- When an employee works outside of any site, the Conseil de prud'hommes of his/her domicile is competent.

In all cases, the employee has a right of option:

- He can refer to the Conseil de prud'hommes of the place where his/her employment contract was signed or,

- It can refer to the Conseil de prud'hommes of where the employer is established.

If the employment contract contains a clause that diverge from these rules, it is deemed unwritten.

3) Unfair dismissal: how much an employee can obtain?

French law distinguishes between employees with at least 2 years' service in a company of 11 or more employees, and employees with less than 2 years' service or who worked in companies with fewer than 11 employees.

a) Employees with at least 2 years' service in a company of 11 or more employees

Concerning these employees, Article L. 1235-3 of the Labor Code states that a judge may propose reinstatement of the employee in the company, with the maintenance of its benefits (although in practice this rarely happens).

In case of unfair dismissal, the employee will receive compensation that cannot be less than the remuneration of the last six months preceding the dismissal.

This compensation should take into account the remuneration, which is fixed or variable (Cass.soc. April 10th, 1991 No. 87-41433), but also overtime that the employee performed during the last six months (Cass.soc. September 21th, 2005 No. 03-43585).

The six months' remuneration is a minimum, the judge may increase such damages depending on its assessment of the facts, especially the injury which the employee relies for his/her unfair dismissal.

In this regard, criteria that allow the employee to get more than six months' wages are:

- His/her age;

- His/her seniority;

- His/her family responsibilities;

- Having found a job or not;

- His/her health;

- His/her moral damages (vexatious circumstances of the dismissal);

- etc.

b) The other employees: with less than 2 years' service and/or who worked in a company with fewer than 11 employees

Foregoing provisions shall not apply to employees with less than 2 years' service, but also to employees whose company employs less than 11 employees, in accordance with Article L. 1235-5 of the Labor Code.

In this case, the compensation requested by the employee will report to the unfettered discretion of judges, and will depend on the damage he/she will necessarily suffer because of his/her dismissal.

In practice, in case of unfair dismissal, the amount of damages is equivalent to three months gross salary, unless the employee establishes a further injury (age, family responsibilities, long-term unemployment, etc.).

4) Other demands that an employee may request

In any event, the employee may make additional requests before the court:

- Notice's compensation;

- Paid holidays;

- Various bonus (13th month, etc.);

- Conventional / legal dismissal's compensation;

- Overtime's payment;

- Various damages (hidden work, vexatious litigant, bullying, etc.).

Frédéric CHHUM

Avocat à la Cour

Camille COLOMBO

Juriste en droit social

Tél : 01 42 89 24 48

Ligne directe : 01 42 56 03 00

e-mail : chhum@chhum-avocats.com

Site internet : www.chhum-avocats.com

blog: http://avocats.fr/space/avocat-chhum

Par frederic.chhum le 04/03/11

1) Facts: John Galliano could have made racist and anti-Semitic remarks

Arrested on February 24th, 2011, in the evening, following an altercation at the “La Perle” cafe, a trendy bar in the Marais (Paris III), John Galliano, drunk, would have hurled to a Jewish woman “Dirty Jewish face, you should be dead” and her boyfriend “Asian fucking bastard, I will kill you”.

The British designer was hired in 1996 by Bernard Arnault, chairman of LVMH, to “give back to Dior punch and visibility.”

Since 1999, he led all women's lines, leather goods, perfumes and the overall image of the brand, communication included.

Dior's reputation owes much to The “bankable” designer: the House has over 160 shops in the world (against 16 to his arrival), and its turnover amounted to 410 million Euros.

Provocative and unpredictable, John Galliano makes Dior's shows unavoidable and electric.

Today, his behavior, already condemned by the House, could ultimately cost him his career.

Indeed, few hours after the revelation of this affair, which occurred few days before the opening of Fashion Week, Dior's CEO, Sidney Toledano, announced: "Dior maintains, with the greatest firmness, its zero tolerance policy against any racist or anti-Semitic remarks or attitude [...] which are in total contradiction with the core values that have always been defended. Pending the results of the investigation, Dior's designer, John Galliano, is suspended from his duties. "

In the process, Dior's designer is covered by a new complaint for similar offenses that allegedly occurred in October 2010.

Finally, a video of December 12th, 2010, posted on Monday 28th February, 2011, on the Sun's website, finally discredit the designer, in which, visibly drunk, he insulted people sitting next to him and launch them “I love Hitler. [...] People like you are dead. Your mothers, your fathers are all fucking gassed.” According to the Sun, the scene was also held at "La Perle".

On 1st of March 2011, the news has come as bolt from the blue, Dior announced its decision to dismiss the designer: “Today, because of the particularly odious behavior and comments made by John Galliano in a video released Monday, Dior has decided his suspension and has initiated a dismissal procedure against him.”

Although the designer has apologized of his conduct, on Wednesday 2nd March, 2011 afternoon, via a press release, his career seems threatened.

2) The dismissal procedure

a) Suspension of 28th, February, 2011

In this case, there is a suspension pending confirmation of dismissal; it is justified by a serious fault, necessarily immediate effect and for an indefinite period (Article L. 1332-3 of the Labour Code).

The suspension is adopted by Dior as part of a disciplinary procedure, probably a dismissal for serious misconduct. It allows removing the designer from the company pending the sanction.

John Galliano's employment contract is suspended during the procedure; Dior would not have to pay him.

b) Preliminary discussion before dismissal: not until March 8th, 2011

John Galliano has probably been called to the preliminary discussion before his dismissal the day of LVMH President's release, Monday, February 28th, 2011.

Article L. 1232-2 of the French Labour Code provides that the period between the notice of the preliminary discussion and the preliminary discussion is five working days.

In the case, under sections 641 and 642 of the Civil Procedure Code, if the date of first presentation of the preliminary discussion's notice takes place Monday, February 28th, the period runs from Tuesday 1st March, it normally expires Saturday, March 5th, is extended until Monday, March 7th, so that the preliminary discussion may take place before Tuesday, March 8th.

3) Ground for dismissal: “characterized disorder to the company” ("trouble caractérisé à l'entreprise") ?

a) Facts relating to privacy

The charges against John Galliano and invoked as grounds for dismissal were held outside its time and place of work.

Thus, the question arises whether it is possible to dismiss an employee for acts relating to his privacy.

In principle, everyone is entitled to respect for his privacy, and the employer cannot interfere in the personal life of his employee.

It follows that, without exception, "the acts committed by an employee that does not correlate with his employment cannot be faulted" (Cass. Court. March 5th, 2000, No. 98-44022).

According to this principle, John Galliano could not therefore be dismissed for acts that occurred outside of his employment contract.

There is one exception, the "characterized disorder to the company", as Dior will probably raise against his Artistic Director.

b) The exception of “characterized disorder to the company”?

"If, in principle, an employee cannot be dismissed for a fact from his private life, it is different when his behavior has created a disorder in the Company" (Cass. soc. September 14, 2010 No. 09-65675).

This assumes that the allegations are based on objective and serious facts, attributable to the employee.

But more often, this objective disorder is, in practice, characterized regarding to the purpose of the company and the employee's duties.

In this case, John Galliano manages, since 1999, Dior's overall image and communication, he must behave as a brand's ambassador, embodying its principles and values, at any time.

In such regard, John Galliano's “odious” remarks create, according to us, obviously "a characterized disorder to the company."

Moreover, the fact that this case has become a global made brief, and a famous actress, face of the brand, says publicly its strong disagreement with the creator, are probably sufficient reasons to justify John Galliano's dismissal, because its tarnish Company's image. Similarly, Dior, which has an international and, therefore, multiracial clientele, could invoke a risk of lower sales to explain this decision.

However, the Court of Cassation (Cass. Court. September 14, 2010 No. 09-65675) poses a limit to this interference in the exercise of employees' liberties by refusing to assent such a disorder on the ground of disciplinary dismissal. Accordingly, Dior will only dismiss John Galliano within a non-disciplinary procedure, legitimized by an objective situation causing a disorder to the Company.

On March 2, 2011, the results of the police investigation on the remarks made by the star designer are unknown, and he benefits from the presumption of innocence (art. 11 of the UDHR).

At the end of the day, in the age of new technologies, an employee, as famous as he is, must be irreproachable, both during the execution of his employment contract as in his privacy.

Frédéric CHHUM

Lawyer

Camille COLOMBO

Labor Law Jurist

Phone : 01 42 89 24 48

Hotline : 01 42 56 03 00

e-mail : chhum@chhum-avocats.com

Website : www.chhum-avocats.com

Blog : http://avocats.fr/space/avocat-chhum