Conventionality in abstracto
Court of cassation (non-binding opinions)
The two advisory opinions delivered on July 17, 2019 (no. 15012 and 15013) by the French Cour de cassation validated the conventionality of the “Macron” scales without considering its practical consequences. This is all the more regrettable as the requests sent to it concerned cases where the employee had less than 2 years of seniority in a company with less than 11 employees and was therefore entitled to a severance payment in-between 1 and 2 months’ gross salary.
After specifying that the conventional notion of “adequate compensation” preserved a national “margin of appreciation” in the compensation of dismissals without real and serious cause (hereinafter WRSC), a margin understood as limiting the principle of full compensation under the ordinary law of liability, the Court of cassation merely recalled the two legal grounds excluding the “Macron” scales – the reinstatement of the employee and the nullity of the dismissal – to justify their “compatibility” with Article 10 of ILO Convention No. 158.
Conseil de Prud'hommes (hereinafter CPH) of Le Mans
Confronted to an employee with less than one year’s seniority, equating to a compensation ceiling of one month’s gross salary, the CPH of Le Mans (judgement n° 17-00538) also took refuge behind an abstract assessment of Article L1235-3’s conventionality.
Here, there are three reasons for its compliance with Article 10 of ILO Convention No. 158 (page 7) :
The possibility of considering criteria other than the employee’s seniority within the legal range – “in particular age and difficulties in finding a job, after years spent within the same company”;
The exclusion of nullified dismissals under Article L1235-3-1;
The possibility for the employee to obtain compensation for separate damages “on a civil-liability-law basis” – in this case, the tribunal ordered the employer to pay compensation for the vexatious circumstances of the dismissal.
Unconventionality in abstracto
CPH of Le Havre
In its judgement (no. 18/00413) of September 10, 2019, the CPH of Le Havre judged unconventional the compensation ranges following a conventionality review in abstracto. Unless proved otherwise, this is the first decision rejecting the application of Article L1235-3 of the French Labour Code without even checking whether, in the present case, its implementation would have led to “inadequate compensation” of “inappropriate reparation” for unjustified dismissal.
In this case, the employee, who worked as a logistics agent for 9 years, had been dismissed WRSC. In accordance with the law, he was entitled to severance pay ranging from a minimum of 2,5/3 months to a maximum of 9 months’ gross salary. By ordering the employer to pay him unjustified dismissal compensation of 35,000 euros, the CPH of Le Havre decided beyond the legal maximum.
Exclusively against the conventionality of the new regime and therefore highly unbalanced, the approach adopted is very unlikely to be confirmed on appeal. In the meantime, it provides an opportunity to highlight some of the most worrying elements of the new regime.
First, seniority is not a sufficient criterium of adjustment. By hypothesis, “an employee with low seniority may have a greater prejudice than an employee with high seniority”.
Second, amounts provided for in the compensation ranges would encourage employers to dismiss without just cause because of their cap, as well as their weakness (page 15).
Some of these arguments should be supported by specific examples. Most of them are to be put into perspective :
the objective of securing employers is not in itself at odds with the compensation of dismissals WRSC;
the indemnity ceiling does not necessarily encourage unjustified dismissal, particularly in cases where the employee’s seniority is significant;
the comparison made between the compensation ranges for WRSC dismissal and the scale provided for lump sum conciliation indemnity does not seem relevant in view of their respective perimeters;
the European Committee of Social Rights (hereinafter ECSR) did not sanction Finnish Law solely on the grounds of a problematic capped-compensation;
the “sharp decrease” in compensation since the new law entered into force does not seem to be compatible with the averages resulting from judicial practice used to determine the ranges.
Otherwise, the CPH of Le Havre is wrong when it states that “the employee cannot obtain compensation for a certain number of damages (moral consequences on its person and family, on its financial health in terms of remuneration or on its property, etc.) through another legal channel” (page 15). The Court seems unaware that the new regime does not preclude other claims for compensation, in cases of moral prejudice, vexatious circumstances of dismissal, employer’s failure to fulfil a legal or contractual obligation, etc.
Admittedly, the compensation constraints imposed by the last paragraph of Article L1235-3 further restrict the discretion of the labour judges within the compensation ranges. Nevertheless, it is wrong again to write that the new regime, as a whole, deprives them of “almost all of their discretion” or that it prevents them absolutely from “granting employees the adequate compensation taking into account all their damages”. While this may happen under certain conditions (low seniority of the dismissed employee in a company with less than 11 employees, plus an accumulation of indemnities under paragraph 5), this is not necessarily the case. For all these reasons, the difference between abstract conventionality and concrete unconventionality should not be overlooked.