Presentation: You know or have had to go to an interview prior to your termination. The basic rules are laid down in Article L. 1232-2 of the Labour Code. I propose an overview of recent decisions by setting the rules. You will find that judges exercise greater control over what is far from a formality.
Convening of the employee by a bailiff, for chronopost?
Although Article L. 1232-2 paragraph 2 of the Labour Code states that the notice of the interview prior to termination is made by registered letter or by personal delivery against receipt, by two decisions of February and March 2011 the justices upheld a summons by Chronopost and bailiff.
These modes of meeting the judges believe are intended only to prove the date of the notice (even due two decisions):
"But whereas the mode of convening the meeting prior to termination, by sending the letter with return receipt or by personal delivery against receipt, referred to in Article L. 1232 - 2 of the Labor Code, is a legal way to prevent any dispute as to the date of convening "
"That the Court of Appeal had correctly held that service by a bailiff was not an irregularity in the procedure of dismissal"
(Court of Cassation, Social Chamber March 30, 2011 to appeal No.: 09-71412)
"The appeals court held that just sending the summons by the rapid transit system of mail called" Chronopost "which can justify the dates of dispatch and receipt of the letter could not constitute a irregularity of the proceedings of dismissal "(Court of Cassation social room Feb. 8, 2011 Case No. 09-40027)
Conducting the interview: no abuse of process!
Judges uphold ensure a balance during the preliminary interview.
They condemn what they call "a diversion by the employer of the purpose of this interview."
This "diversion" is characterized according to the judges:
The presence of an employee of the company in dispute with an employee summoned for interview:
"The participation of a staff representative along with the employer during the interview prior to termination when there was a major dispute between the person and the employee had prevented it to express themselves freely" (Court of Cassation Social Division June 21, 2011 Case No. 10-11690)
The presence of two line managers in addition to the HRD:
"Having regard to Article L. 1232-3 of the Labour Code;
... The presence of the branch manager and head of human resources along with the regional director of the center had transformed the pre-dismissal interview survey, and so diverted the procedure of its object "(Court of Cassation, Social Chamber March 25, 2010 Case No. 07-43384).
The presence of a non-essential employee (receptionist) deprive the maintenance of confidentiality:
"But given sovereign appreciating the facts, the Court of Appeal held that the participation of a hostess at the preliminary interview was intended only to publicize the dispute between the employer to the employee ; she characterized a diversion by the employer of the purpose of the interview "(Court of Cassation Chamber Social June 17, 2009 Case No.: 08-15780
Finally, the formality of the invitation to the interview before the judges do not accept compromise
- Or in respect of the employee requesting a postponement of the interview prior to his employer.
Judges consider whether Article L. 1232-2 of the Labour Code provides for a period of 5 days between the date of the invitation to the interview and the date of the interview this time does not run in the event of postponement requested by the employee "only from the presentation of the registered letter or hand delivery of the initial letter of convocation "(Court of Cassation, Social Chamber Judgement of November 9, 2010 No. 09-41578
- Or in respect of the employer does not address the town hall where the list of advisors can be found guilty of improper procedure because:
"It results from the combination of Articles L. 1232-4 and 1232-5 D. Labour Code that the letter convening the meeting prior to dismissal must include the ability for the employee, where there is no employee representative bodies in the business, to be assisted by counsel of his choice on a list compiled by the State representative in the department, and the address of the Labour Inspectorate and the town hall where the list shall be available to the employee, that the omission of one of these addresses is a procedural irregularity;
even if the letter of invitation "indicates that this list is available at City Hall Fort de France, or the departmental work, which is a sufficient indication with regard to services whose address is known of all;
The invitation letter should mention the addresses of where the list of advisors can be found "(Court of Cassation, Social Chamber Judgement of September 19, 2007 No. 05-45605)
- Neither with respect to "the computation of time" by the judges clarified that is the method of counting the famous 5 working days:
"The computation of the statutory period of five days is subject to the rules laid down in Articles 641 and 642 of the Code of Civil Procedure.
On the day of the presentation of the letter, which starts the delay does not count.
On Sunday, which is not a business day does not count either.
The period expires on the last day at midnight.
The countdown should begin January 28, 2009, which was a Wednesday, and can not be used in this statement on 1 February 2009, which was a Sunday. "(Court of Appeal of Angers social chamber stop n July 5, 2011 ° RG: 10/01264)