Court of cassation, Labor div., 27 May 2025, no. 24-16.119
A personal assistant at a clinic was dismissed for serious misconduct for having used another employee’s access to modify her work cycle in the dedicated software to obtain overtime without her employer’s knowledge.
The employee brought an action to challenge her dismissal for serious misconduct.
She lost and lodged an appeal to the Court of Cassation, challenging the delay in initiating the disciplinary proceedings were initiated:
“As serious misconduct is that which makes it impossible for the employee to remain with the company, the employment contract must be terminated within a limited period of time after the employer becomes aware of the alleged facts, provided that no verification is necessary”.
Although the employer became aware of the facts during an inspection carried out on 11 October 2019, it was not until 21 November 2019, almost a month and a half later, that it initiated the dismissal procedure.
The Court of Cassation upheld the employee’s reasoning.
After recalling the definition of serious misconduct, it ruled that the Court of Appeal should have investigated whether the dismissal procedure had been implemented within a limited period of time after the employer had established the facts attributed to the employee.
The case is therefore remanded to a differently constituted Court of Appeal.
In the Supreme Court’s view, compliance with the two-month limitation period for starting disciplinary proceedings set out in Article L.1332-4 of the French Labour Code is insufficient: serious misconduct seems intrinsically incompatible with the employee remaining in his post once the employer is aware of the misconduct.
The solution would undoubtedly have been different if the employee had been placed on precautionary suspension or if the delay could have been justified by verification operations.