The capping (le plafonnement) of the dismissal indemnities for unfair dismissal (licenciement sans cause réelle et sérieuse) has restricted the amount of sums that an employee can obtain before the Conseil de prud’hommes after being dismissed (see our previous article " Macron orders: what changes for employees with the capping of industrial tribunal severance pay ").
Strongly disparaged, such capping has been validated by the Constitutional Council (Conseil constitutionnel) (decision n ° 2018-761 of March 21st, 2018) and applies to all dismissals pronounced since September 24th, 2017.
There are, however, several ways to escape its application.
1) Cases of exclusion from the Macron scale of industrial tribunal allowances
First of all, the French labour Code itself provides for several hypothesis that capping (plafonnement) is excluded (see our previous article "Employees, executives, top executives: 4 tips to avoid the ceiling on industrial tribunals provided for by the Ordinance". Macron ")
Then, apart from these exhaustively enumerated hypotheses, it is possible to get the Labour Court to dismiss the application of the scale because of its opposition to international standards which are hierarchically superior to it.
Indeed, serious doubts remain as to the conformity of such provisions with several international standards.
2) The possibility for the Conseil de Prud’hommes to exclude the application of the Macron scale because of its unconventionality
It falls within the power of the Labour Court (Conseil de prud’hommes) to dismiss the application of the provisions of the labour Code that it considers unconventional, i.e contrary to international law.
In fact, each legal standard must be compatible with all the rules that are superior to it in the hierarchy of standards.
More specifically, with respect to the rules of international law, Article 55 of the French Constitution provides that: "Treaties or agreements regularly ratified or approved have, since their publication, an authority superior to that of the laws ..."
The French judge may therefore be led, during the examination of a dispute, to exclude the French law to make prevail the international convention in the resolution of the dispute.
This possibility has, moreover, been implemented by a labour tribunal in the context of the disputes concerning the new hiring contract (CNE), which is considered to be contrary to Convention n°158 of the International labour Organization (ILO). (See, in particular, the Longjumeau Conseil de prud’hommes, April 28th, 2006, De Wee v. Philippe Samzun, No. 06/00316, Paris Court of Appeal, 18th E, July 6th, 2007, No. S06 / 06992).
However, the scale provided for in Article L.1235-3 of French labour Code is in contradiction with several international standards.
2.1) The contradiction of the Macron scale (Bareme Macron) of Article L. 1235-3 of the labour Code with Article 10 of ILO Convention n°158
In order of the Conseil de prud’hommes to set aside the application of the scale of industrial tribunal indemnities enacted by Article L. 1235-3 of French labour Code, it is first of all possible to maintain that this scale (barème) is contrary to Article 10 of ILO Convention n°158.
In fact, Article 10 of ILO Convention n°158, which deals with dismissal, provides that judges who make a finding must "be entitled to order the payment of adequate compensation or any other form of reparation regarded as appropriate” (principe de réparation appropriée).
The existence of a ceiling (barème) on the compensation awarded in the event of unfair dismissal / without real and serious cause would therefore be contrary to such principle of appropriate compensation.
However, this Convention was ratified by France on March 16th 1989 and the Council of State confirmed that its provisions had direct effect (EC Sect., 19 October 2005, CGT et al., No. 283471).
2.2) The contrariety of the Macron scale (barème Macron) of Article L. 1235-3 of the labour Code with Article 24 of the European Social Charter (Charte Sociale Européenne)
Secondly, the icon veniality of the scale of industrial tribunal allowances may be sought in the light of Article 24 of the European Social Charter of May 3rd 1996, ratified by France on May 7th 1999, the direct effect of which has also been recognized by the Council of State. (EC, February 10, 2014, M. Fischer, No. 359892).
Article 24 states that:
“With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise:
a. the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service;
b. the right of workers whose employment is terminated without a valid reason to adequate compensation or other appropriate relief.
To this end, the Parties undertake to ensure that a worker who considers that its employment has been terminated without a valid reason shall have the right to appeal to an impartial body.”
In this respect, the European Committee of Social Rights has stated that an appropriate compensation entails "the reimbursement of financial losses incurred between the date of dismissal and the decision of the body of appeal, the possibility of reinstatement and the compensation of an amount high enough to deter the employer and to compensate for the harm suffered by the victim ". (Decision of September 8th 2016, Finish Society of Social Rights v. Finland, No. 106/2014)
However, the European Committee of Social Rights took care to specify, in this decision of September 8th, 2016, that "any cap that would have the effect that the awards granted are not related to the damage suffered and are not sufficiently dissuasive is in principle contrary to the Charter ".
The committee thus censored the Finnish law (loi finlandaise) which provided that the judge fixed compensation for unjustified dismissal on the basis of seniority, the age of the employee, its prospects of finding an equivalent job, the duration of his inactivity, and the general situation of the employee and the employer but with a floor of 3 months’ salary and a ceiling of 24 months.
Especially, it is therefore possible to argue that the scale set by Article L.1235-3 of French labour Code and which provides for a ceiling still lower (1 to 20 months depending on seniority), is contrary to Article 24 of the European Social Charter as interpreted by the European Committee of Social Rights.
In addition, for employees with less seniority, the amount of the ceiling allowance is so low that the dissuasive purpose it is intended to fulfil under Article 24 of the Charter is reduced to nothing.
It is therefore perfectly legitimate to argue that the scale of Article L. 1235-3 of the labour Code infringes Article 24 of the European Social Charter in two respects.
As far as we know, there is still no decision of a Labour Court that has rejected the scale because of its contrariety to international standards.
However, it is the responsibility of all the defenders of the employees to raise this unconventionality in a systematic way in the hope of obtaining industrial tribunal judges an invalidation of this scale which drastically limits the compensation of unfair dismissals / without real cause and serious
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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