Dismissal Procedure and Physical Incapacity with Exemption from Redeployment

Cass. Soc., September 18, 2024, 22-24.363; 22-24.364

An employee was declared physically unfit for work by the company doctor with an exemption from redeployment. Considering that dismissal was therefore inevitable, the employer sent the employee their termination documents even though the preliminary meeting had not yet taken place.
The employee brought the case before the labor court to contest the dismissal, arguing that the employer had not complied with the dismissal procedure, as they had apparently decided to terminate the employment even before the preliminary meeting.

The Court of Appeal of Fort-de-France:

• Held that the employer had indeed failed to comply with the dismissal procedure by sending the documents before the preliminary meeting.
• Acknowledged that the company doctor had declared the employee physically unfit with an exemption from redeployment, and consequently considered that this breach constituted a mere procedural irregularity, punishable by the compensation provided for in Article L. 1235-2 of the French Labor Code (one month of damages).
• Refused to rule that the dismissal for physical incapacity was without real and serious cause.

The Court of Cassation overturned this decision: regardless of the fact that the employee had been declared physically unfit with an exemption from redeployment, by manifesting their irrevocable intent to terminate the employment contract before the preliminary meeting, the employer verbally dismissed the employee, thus rendering the dismissal for incapacity without real and serious cause.

Through this decision, the Court of Cassation adopts a particularly formalistic approach: even if the employee’s dismissal is inevitable because he has been declared unfit for any position – even if the preliminary interview therefore no longer has a concrete purpose and appears purely formal – it is imperative that all stages of the dismissal procedure be perfectly respected, failing which the dismissal will be deprived of real and serious cause if the legal process is not – strictly speaking – respected.