Nullity of dismissal: reinstatement possible for an employee who abandons his request for judicial termination

Cass. soc. May 11, 2023, no. 21-23148 and 22-10082

On May 11, 2023, in a decision that raises the question of its consistency, the French High Court clarified that an employee who applies for judicial termination of his employment contract and for his dismissal to be declared null and void, in the course of the same proceedings, may, if he waives his application for judicial termination, obtain reinstatement.

In order to fully understand this decision, we need to recall the contours of judicial termination, a method of terminating an employment contract at the employee’s initiative.

For the record, an employee who accuses his employer of serious breaches in the application of his employment contract can ask the Labour Court to terminate his contract. Unlike a “prise d’acte”, where the employee ceases to work, a “résiliation judiciaire” means that the employee continues to work until the court hands down its decision. During this period, the employer also retains the right to terminate the employment contract.

Thus :

• if the judge decides to terminate the contract, the termination will be considered as a dismissal without real and serious cause (or null and void if the employee was a staff representative, for example). It will take effect on the date of the judgment, or on the date on which the employee is dismissed;
• if the judge does not order judicial termination, the employee will continue to perform his or her duties under the usual conditions. However, if the employee is dismissed in the course of the procedure, the judge must rule on the validity of the dismissal, and if necessary, on its nullity.

With regard to the possible nullity of the termination of the employment relationship, as we know, when a dismissal is deemed as such, the employee, if he so requests, is entitled to reinstatement and to the payment of an eviction indemnity corresponding to the months of wages lost between his dismissal and his reinstatement in the company (after deduction, with certain exceptions, of wages or indemnities received in parallel during this period).

However, in a decision dated January 27, 2021, the French Supreme Court (Cour de cassation) ruled that when an employee applies, in the course of the same proceedings, for judicial termination and nullity of his dismissal, the judge who declares the dismissal null and void shall cannot grant the employee’s request for reinstatement. (cass.soc.27 janvier 2021,n°19-21200)

This is a logical solution, since the request to terminate the contract reflects the employee’s desire to terminate the employment relationship, and is therefore at odds with a potential reinstatement.

With that in mind, let’s return to the decision …

1. The facts of the case

On June 27, 2016, an employee brought an action before the industrial tribunal seeking judicial termination of his employment contract.

On March 10, 2017, his employer dismissed him for unfitness and inability to redeploy.

Evolving his claims, the employee sought the annulment of his dismissal, his reinstatement and the payment of an eviction indemnity, in addition to his initial request for judicial termination.

In a judgment dated May 3, 2018, the labor tribunal found the request for judicial termination unfounded, and examining the dismissal that took place on March 10, 2017, deemed the latter perfectly justified.

On May 30, 2018, the employee appealed this decision. However, before the court could rule on the case, the latter decided, in his very last appeal, to abandon his request for judicial termination.

The Court of Appeal then declared the dismissal null and void, but dismissed the employee’s claims for reinstatement and payment of compensation for eviction, giving the following reasons for its decision:

” we have to point out that on June 27, 2016, the employee requested judicial termination of the employment contract to the detriment of the employer. until the third set of pleadings served on the appeal, The employee had applied for judicial termination of his employment contract to the sole detriment of the employer, and maintained this application after the employer had dismissed him in the course of the proceedings, the continuation of the employment contract cannot be ordered between two parties who have each irreducibly manifested their intention to terminate it “

Clearly, for the appeal judges, the waiver, even belated, of the request for judicial termination did not rule out the fact that the employee had shared with his employer a desire to breach the employment contract, which was in itself incompatible with the right to request reinstatement.

However, this will not be the position of the High Court!

2. The High Court’s position

The Court of Cassation first recalled that :

“When an employee applies for judicial termination of his employment contract and for his dismissal to be declared null and void in the course of the same proceedings, and then abandons the application for judicial termination in the course of the proceedings, the judge who declares the dismissal null and void must examine the application for reinstatement. “

Thus, reasoning in the opposite direction to the appeal judges, the Supreme Court will consider that the Court of Appeal:

“In so ruling, even though it had noted that the employee had abandoned his request for judicial termination of the employment contract in his last written submissions, the Court of Appeal, which failed to draw the legal conclusions from its findings, violated the aforementioned texts“.

The solution is clear: according to the High Court, no matter when the employee abandons his request for judicial termination of his employment contract, the judge who declares the dismissal null and void must examine the request for reinstatement.

3. The scope of this ruling

While in the past, the French Supreme Court has clearly ruled out any form of reinstatement when an employee applies for both judicial termination and nullity of dismissal in the same proceedings, it is now moderating its position, allowing the employee to apply for reinstatement in the event of nullity of dismissal, on condition that he waives his prior request for judicial termination during the proceedings.

This decision is open to criticism, since in principle, if the employee brought an application for judicial termination, it was because he was accusing his employer of breaches which, in his view, were sufficiently serious to make him unwilling, or even unable, to continue the employment relationship. So how do you explain the fact that he was nonetheless offered the possibility of finally applying for reinstatement in the company he wanted to leave?

Once again, as we unfortunately repeat all too often, the Cour de cassation is indulging in pure legalism.

To the detriment of all common sense. And even if it means falling foul of the concept of good faith and common intention, which it uses in an unintelligible way. For the employer, anyway.

We’d like to continue fuelling mass litigation, but we couldn’t do any better.