The Court of Cassation will decide on July 17 on the ceiling of the awards industrial tribunal for unfair dismissal, after dedicating Monday a plenary session on this thorny file which pits the representatives of the employees to the government and the employers.
Since the ordinances reforming the Labor Code at the end of 2017, these damages and interest are capped between one and twenty months of gross wages, depending on seniority. Previously, they were under the free will of judges, up to 30 months of salary for 30 years of seniority.
However, since the end of 2018, a confusion has surrounded this scale, criticized by the unions and hailed by the employers, since labor court councils override it.
To see more clearly, the councils of Louviers (Eure) and Toulouse have seized the highest jurisdiction of the judiciary "for opinion" without waiting for an appeal.
The question asked: Is this scale consistent with several international texts ratified by France?
There is Article 10 of the 1982 International Labor Organization (ILO) Convention 158, which states that in case of unjustified dismissal judges must "be entitled to order the payment of adequate compensation or any other form of repair considered appropriate ".
Article 24 of the European Social Charter of 3 May 1996 states that workers are entitled to "adequate compensation or other appropriate compensation" in the event of dismissal.
The Louviers council also questioned the compatibility with Article 6 of the European Convention on Human Rights on the "right to a fair trial".
Unsurprisingly, like the general counsel, the lawyers representing the employers spoke in favor of the scale, pointing in particular to the "vague concept" of the international texts on "adequate" and "appropriate" compensation.
Conversely, employee councils have criticized the scale itself, "unfair" and "secures the faulty employer".
"The scale considers the worker as an object," noted Antoine Lyon-Caen, saying "absolutely odious" the ontology of cap.
Mejo Grévy denounced "an unacceptable economic theory that allows to know in advance the price of the violation of the law".
"With equal seniority, a low-skilled 51-year-old employee in a disaster-affected employment pool and a highly qualified 35-year-old employee living in a very dynamic employment area will receive the same benefit, while the injury is greater for the worker. first, "she said.
– "Voluntarily vague terms" –
Arguments swept by employers' lawyers.
"It's not a question here of whether the measure is good or bad," said François Pinatel. Article 6 of the human rights convention on fair trial "has nothing to do in this debate" because with the scale "the judge is free to determine the prejudice", according to him.
And the ILO also "has nothing to do in this debate". The scale, "balanced" in France, "is a strong trend in Europe and the ILO has never had a derogatory comment on this," he said.
Other arguments: the scale is not applied in cases of moral harassment or discrimination, and the licensee can claim a "generous replacement income" through unemployment benefits.
For Mr. Jean-Jacques Gatineau, the Charter 24 can be applied to signatory parties (States) but not to "natural and legal persons, employees and employers".
The general counsel, Catherine Courcol-Bouchard, judged the scale consistent with the ILO article, drafted in "deliberately vague terms" to leave the States a margin of maneuver, according to her.
It ruled "inadmissible" the use of the Social Charter and was "puzzled" by the reference to Article 6 of the Convention on Human Rights.
"It is true that several studies have shown that the scale has reduced the number of reparations granted to employees, which may be regretted, but that is not the question.The role of the judge is not to say whether a measure is good or bad, "she said.
The positions of the Advocates General are not always followed by the Court of Cassation.