201610.11
0

All clauses in the employment contract which are less favorable than the ones set by law, shall be null and void

According to Article L.121-6 of the Labor Code:

« (1) An employee unable to work due to illness or accident is obliged, on the day of the impediment to warn personally or through another person, the employer or representative thereof.

The information referred to in the preceding paragraph may be made orally or in writing.

(2) The third day of absence at the latest, the employee is obliged to submit to the employer a medical certificate certifying his/her incapacity to work and its probable duration.

(3) The employer notified in accordance with paragraph (1) or in possession of the medical certificate under subsection (2) is not allowed, even for serious reasons, to notify the employee of the termination of his employment contract, or if applicable, the invitation to a preliminary hearing referred to in Article L.124.2 for a period of twenty-six weeks at most from the date of the occurrence of the incapacity for work ….

The provisions of paragraphs 1 and 2 shall cease to apply with regard to the employer if the presentation of the medical certificate is not completed before the end of the third day of absence from work.

The termination of the contract made in violation of this paragraph is abusive. (…) « .

It follows that the sick employee is authorized by law to inform the employer of his inability to work the first day until midnight.

Point 13 of the employment contract which requires sick employees working for Company A, to inform the employer of their absence before 9am is therefore less favorable than the law. By dismissing the employee with immediate effect on the first day of the extension of the sick leave, the employer acted prematurely and in an untimely manner, and therefore in violation of the law. The dismissal is for this reason alone to be considered unfair.

It follows that it is superfluous to analyze whether the other grounds given by the employer to dismiss his employee without notice are real and serious.

The judgment is therefore, although for other reasons, to be confirmed, in that B’s dismissal was declared abusive. (C.S.J., 12/03/2015, n°40824 du rôle).