Ratified treaties¹

Unilateral suspension of employment relationship/ Probatory period/ Direct resolution of a dispute on the basis of international law

A man was employed as a cabin crew member by an Irish company, a subsidiary of a French airline. The contract, for a three-year period, was written in English and made subject to Irish law by the parties. It established a six-month probatory period, renewable once to a maximum of a twelve-month period. During the probatory period, the employer terminated the employee’s contract.

The employee then referred to the courts to obtain various amounts of compensation for the termination of the contract. The Court of Appeal had reclassified the contract as an indefinite contract and ordered the employer to pay indemnity for the reclassification. It nonetheless dismissed the employee’s other claims related to the termination of the work contract during the probatory period. The employee proceeded to lodge an appeal.

In its ruling, the Supreme Court relied on Articles 3 and 6 of the Convention on the law applicable to contractual obligations (Rome Convention), which authorizes the parties to choose the law applicable to the employment contract. That Convention stipulates that this choice cannot have the outcome of depriving the worker of the protection provided by the obligatory provisions of the law that would be applicable unless otherwise chosen, meaning the law of the place where the employment contract is usually performed or, if the worker does not usually carry out his work in the same country, the law of the country where the company hiring the worker is located. In its decision, the Supreme Court also relied on the principles set down in ILO Termination of Employment Convention, 1982 (No. 158) and particularly the exemption provided in Article 2(2)(b) which authorizes the employer to terminate the employment relationship, without having to provide a valid reason, throughout the probatory period, in the case of “workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration”.

The Court went on to recall the observations of the Court of Appeal according to which the employment contract was made subject by the parties to Irish law but was performed in France for the whole duration of the contractual relationship. The Court of Appeal had nonetheless decided “that, at the time of the termination of the employment contract in 2006, there was no public order provision in French law forbidding a probatory period of one year”.²

The Supreme Court, on the contrary, declared that “the provisions of Article 2 of ILO Convention No. 158 constitute obligatory provisions and it is unreasonable, with respect to the requirements of this convention, to have a probatory period whose duration, renewal included, is of one year”.³ It thus overturned the Court of Appeal ruling and referred the case to another court.

Basing its decision directly on the provisions of international conventions ratified by France to overturn the decision of the Court of Appeal, the Supreme Court set aside the law chosen by the parties in order to apply obligatory provisions of French law, which include the provisions of Article 2 of ILO Convention No. 158 concerning the probatory period.