Supreme Court (“Cour de cassation”), Social Chamber, 4 June 2009, Appeal No. 08-41.359

Constitution of France

Article 54

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.

Article 55

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.

Role of International Law:
Direct resolution of a dispute on the basis of international law
Type of instruments used:

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. 

1 ILO Convention on Termination of Employment, 1982 (No. 158).

2 According to art. 10 of the collective agreement, hired agents have to accomplish first a period of work called “stage”. If the “stage” is satisfactory, the agents are then given permanent status and their functions are confirmed. Otherwise, the management ends their contracts.

3 Article 2:  “A Member may exclude the following categories of employed persons from all or some of the provisions of this Convention: a) workers engaged under a contract of employment for a specified period of time or a specified task; b) workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration; c) workers engaged on a casual basis for a short period.” 

Full text of the decision