Cass. soc., July 5, 2023, n°21-25.797
Can an employer’s failure to resume payment of wages within one month of dismissal for unfitness be punished by payment of compensation in lieu of notice?
The Court of Cassation answers in the negative, contrary to the lower courts.
For the record, article L.1226-4 of the French Labor Code stipulates that :
In this case,
The employee brought an action before the industrial tribunal, claiming that his failure to comply with article L.1226-4 al. 1 entitled him to compensation in lieu of notice.
The lower courts upheld his claim – while ruling that the dismissal was based on a real and serious cause – and ordered the employer to pay the corresponding back pay for the month in question, as well as compensation in lieu of notice, as a penalty for the failure to recover wages.
They thus consider that the payment of compensation in lieu of notice (in principle not due following dismissal for unfitness) constitutes a sanction for any type of breach by the employer of its obligations, whereas such a sanction had previously only been accepted in the absence of serious cause for dismissal.
In overturning this decision, the Cour de cassation, after recalling article L.1226-4 al 3, noted that the employer’s failure to meet its obligation to resume payment of wages did not justify the introduction of a new exception to the principle of absence of entitlement to compensation in lieu of notice.
This ruling reiterates the opinion of the Advocate General, who considers that it is exclusively the final imputability of the termination that determines the eventual payment of compensation in lieu of notice.
In the light of this decision, the unfounded nature of the dismissal remains the only exception to the non-payment of compensation in lieu of notice following dismissal for unfitness.