Supreme Court (“Cour de cassation”), Social Chamber, Mr. Samzun v. Ms. de Wee, 1 July 2008, Appeal No. F 07-44.124
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
Employment contract/ Dismissal/ Reason/ Direct resolution of a dispute on the basis of international law
A worker had been hired as a secretary under a fixed-term employment contract. This contract was terminated by signature of a contract created by the national legislator, the “new hire” contract (“contrat nouvelles embauches”). A month later, her employer had, without justification, terminated this contract. The worker took her employer to court. She claimed that the “new hire” contract, as established in the Ordinance (“Ordinance”) of 2 August 2005, did not comply with ILO Convention No. 158 in that it allowed the employer to terminate it without justification in the two years following its conclusion. The court of first instance and the appeal court found in her favour, ruling that the “new hire” contract was not in line with the provisions of the Convention.
Her employer appealed against the appeal court’s judgment to the Cour de Cassation. In this forum, he argued that ILO Convention No. 158 could not apply to the “new hires” contract, which was covered by the exclusions provided for in Articles 2 § 2 and § 5 of the Convention. His argument was not accepted.
The Cour de Cassation thus resolved this dispute by direct application of Articles 4, 7 and 9 of ILO Convention No. 158. It ruled that Article 2 of the Ordinance of 2 August 2005 instituting the “new hire” contract2 did not satisfy the requirements of the combined provisions of the international Convention because it set aside the general provisions relating to the procedure prior to dismissal, the need for there to be a real and serious reason, and the way it had to be announced and supervised; it deprived the worker of his or her right of defence prior to dismissal; and it laid on him/her alone the burden of proving that the dismissal was unfair.
Basing itself on Articles 4, 7 and 9 of ILO Convention No.158, the Cour the Cassation set aside the provisions of the national text, declaring them to be contrary to the international legislation, and stated that termination of the contract was subject to the public regulations provided for in the Labour Code and that the unjustified dismissal of the worker was without real and serious cause. Her employer was therefore ordered to pay the compensation provided for in cases of unfair dismissal.
The provisions of the “new hire” contract were repealed by a law dated 26 June 2008.3
2 Article 2 of Ordinance No. 2005-893 of 2 August 2005: “The employment contract defined in Article 1 shall be concluded without fixed term. It shall be drawn up in writing. This contract shall be subject to the provisions of the Labour Code, with the exception, during the first two years, of the provisions of Articles L. 122-4 to L. 122-11, L. 122-13 to L. 122-14-14 and L. 321-1 to L. 321-17 of the said Code.
This contract may be terminated on the initiative of the employer or the employee, during the first two years, on the following terms:
1° Notification of termination shall be given by registered letter with request for acknowledgement of receipt;
2° When the employer initiates the termination, except in the case of gross misconduct or force majeure, presentation of the registered letter shall, if the employee has been with the enterprise for at least a month, give rise to a notice period. The duration of this period shall be two weeks in the case of a contract that has been in force for fewer than six months on the date of presentation of the registered letter, or one month in the case of a contract in force for six months or more;
3° When the employer has initiated the termination, except in the case of gross misconduct, he shall pay the employee, at the latest on expiry of the notice period and in addition to the sums remaining due by way of salary and paid holiday allowance, an indemnity equal to 8% to the total gross amount of salary due to the employee since the contract was entered into. The fiscal and social regime applicable to this indemnity shall be as for the indemnity mentioned in Article L. 122-9 of the Labour Code. To this indemnity paid to the employee shall be added an employer’s contribution equal to 2% of the gross remuneration due to the employee since the inception of the contract. This contribution shall be recovered by the bodies mentioned in the first paragraph of Article L. 351-21 of the Labour Code in accordance with the provisions of Articles L. 351-6 and L. 351-6-1 of the said Code. It is intended to fund the additional support activities provided by the public employment service to help the employee in getting back into work. It shall not be regarded as a component of salary as defined in Article L. 242-1 of the Social Security Code”.