Supreme Court (“Cour de cassation”), Social Chamber, 29 March 2006, Appeal No. 04-46.499
Constitution of France
If the Constitutional Council, at the request of the President of the Republic, the Prime Minister, the President of one or the other assembly or by sixty deputies or sixty senators, has declared that an international commitment contains a clause contrary to the Constitution, authorization to ratify or approve the international commitment in question may be given only after amendment of the Constitution.
Duly ratified or approved treaties or agreements shall, upon publication, prevail over acts of Parliament, subject, in regard to each agreement or treaty, to its application by the other party.
Direct resolution of a dispute on the basis of international law
Termination of a contract of employment without a period of notice/ Domestic law subjecting the benefit of period of notice to a condition of length of employment/ Direct applicability of the provisions of ILO Convention No. 158/ Conformity of domestic provisions with ILO Convention No. 158/ Direct resolution of a dispute on the basis of international law
The contract of employment of a worker had been terminated without a period of notice, three months after having been hired. The worker entered a claim for compensation for period of notice despite the fact that the French Labour Code makes period of notice obligatory only for employees with at least six months of employment. In support of his claim, the employee referred to ILO Convention No. 158, ratified by France, which provides in its Article 11 that workers who are dismissed have a right to a reasonable period of notice.
Considering this case upon appeal, the Court of Appeal accepted the employees’ claims and granted him compensation for lack of period of notice on the basis of ILO Convention No. 158. The employer challenged that decision before the Supreme Court.
In order to settle the dispute, the Social Chamber of the Supreme Court first established the list of legal provisions applicable to the dispute, thus regulating the question of the applicability of the provisions of ILO Convention No. 158 by domestic courts. In this regard, the Court stated the following:
“Article 1, Article 2, paragraph 2(b), and Article 11 of ILO Convention No. 158 on termination of employment at the initiative of the employer, adopted in Geneva on 22 June 1982 and which entered into force in France on 16 March 1990, are directly applicable before domestic courts, together with Articles L. 122-5 and L. 122-6 of the Labour Code.”
That first point settled, the Court then took up the question of whether the provisions of the Labour Code subordinating the right to a period of notice to a minimum employment of six months were or were not in accordance with the provisions of ILO Convention No. 158. The Court pointed out that Article 2, paragraph 2(b), of that Convention permitted States parties to exclude certain categories of workers from the scope of application of all or part of the Convention, namely those not having the required period of employment under the condition that the length of that employment is reasonable and set in advance. The Supreme Court considered that employment of six months provided for in the Labour Code in order to benefit from a period of notice before termination of employment constituted a reasonable period in accordance with ILO Convention No. 158. On the basis of that affirmation, the French Supreme Court decided that the articles of the Labour Code were in accordance with the provisions of the Convention and that the Court of Appeal’s decision was incorrect:
“By deciding as it did, although with the reservation of the period of notice resulting from application of Articles L. 122-5 and L. 122-6 of the Labour Code, the right to a period of notice is excluded in cases of employment in continuous service of less than six months, which constitutes a reasonable period of employment in the terms of Article 2 of the Convention, the Court of Appeal violated the texts listed above.”
2 ILO Committee of Experts on the Application of Conventions and Recommendations. This source is not expressly cited in the decision of the Court of Appeal. However, the press release issued by the Court concerning that decision makes reference to the General Survey of 1995 of the ILO Committee of Experts concerning unjustified dismissal in order to strengthen the Court’s reading of ILO Convention No. 158.