Ratified treaty¹

Unilateral termination of the employment relationship/ Probation period/ Direct resolution of a dispute on the basis of international law

A man was hired for a management position in a company. Under the company’s collective agreement rules, his contract stated that he was obliged to complete a period of “stage”² of 12 months. The same agreement laid down the same obligation for positions in other categories, but only for six months. The contract also established that during this time, the rules on dismissal were not applicable because the period was necessary to find out the aptitudes of the worker and decide whether or not to grant an employment contract. 

The employer dismissed the worker immediately before the end of this period of “stage” and the latter brought an action to establish that the duration of the period was excessive and that he was entitled to payment of compensation because the duration of this period was unreasonable, contrary to the condition laid down in Convention No. 158 of the ILO that excluded employees in a probation period from the rules on unilateral termination of contracts. 

The Appeal Court did not accept the claims of the plaintiff because it considered that the collective agreement was not against the law and the duration of the “stage” was legal. The plaintiff therefore made a further appeal, stating that irrespective of the name given to the position, in actual fact it was an excessively long probation period. He compared his situation with the six-month period applied to employees in other categories in the same company laid down in the collective agreement, without being able to establish any reason for the distinction. The legal grounds for the plaintiff’s appeal were provided by Article 2(b)³ of ILO Convention No. 158.

The Cour de Cassation handed down a judgment, considering the principles set by ILO Convention No. 158 and its Art. 2 paragraph 2 b. The Court stated that:

 “a duration of one year for the stage under the Crédit Agricole national collective agreement for Class III agents of a contract of indefinite duration is unreasonable in the light of the purpose of the trial period and of the exclusion of the rules of dismissal during that period”.

It stated that, on the other hand, establishing a probationary period of six months was compatible with international legislation. The Court concluded that the said collective agreement was incompatible with Convention No. 158 and that the Appeal Court had violated the above Convention in its judgment. The Cour de Cassation therefore overturned the judgment and referred it back for a new decision.