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DISMISSAL FOR SERIOUS MISCONDUCT

The dismissal takes many forms including the termination of the contract for misconduct, or more specifically dismissal for personal conduct of the employee. The dismissal highlights the disciplinary power of the employer against the individual behavior of the employee. In such cases, the employer must be careful to properly qualify the nature of the employee’s misconduct according to its gravity because it is on this qualification that will depend the type of dismissal to operate: with immediate effect or with notice.

It is indeed important to distinguish what is of serious misconduct and which is mere fault.

What is considered serious misconduct?

Under Article L.124-10 of the Labour Code, it is considered a serious cause for dismissal with immediate effect, any fault which makes it immediately and definitively impossible to maintain working relations.

In the assessment of facts or mistakes doing the professional conduct of the employee, the judges must consider the level of education of the employee, employment history, social situation and, in general all the elements that could influence responsibility. They must also consider the consequences of the dismissal.

It is up to judges alone to assess whether the fact invoked as serious misconduct justifies the dismissal with immediate effect (L’Actualité du Droit du Travail au Luxembourg, Tome 1, 2015, p. 261, Me GIABBANI).

Some examples are insults made against the employer (L’ADTLu supra, p. 19), prolonged unjustified absence, the repeated late arrivals, theft, threats and physical violence in the workplace, insubordination, unfair competition in the workplace etc.

Note that a single fact can be serious enough to justify a dismissal with immediate effect.

What are the peculiarities of the dismissal with immediate effect?

A dismissal with immediate effect is possible both in the case of fixed term contracts than in the context of open-ended contracts.

Besides the possibility of being able to dismiss its employee with immediate effect, it must be noted as another peculiarity that the employer may not base a dismissal on facts of which he has been aware of for more than one month in accordance with Article L .124-10 labor code.

This period of one month starts on the day the employer is informed of the facts that could lead to the dismissal.

Beyond a month, it is considered a « social forgiveness » on behalf of the employer to his employee and therefore the employment relationship can continue.

This one-month period can be interrupted especially in the case of justified absence of the employee or in the case of criminal prosecutions conducted in the month against the employee (for example theft).

Finally, the dismissal with immediate efect, may also occur during the notice period of the dismissal with notice.

What form should the letter of termination with immediate effect have?

The letter of the dismissal with immediate effect is unique in that it already contains within it the grounds of the dismissal without the employee having to ask them.

The reasons must be connected with the capacity or conduct of the employee and must be real and serious. The termination letter must set out the fact(s) or mistake(s) of particular gravity and must be sufficiently precise to allow not only the judges to debate whether the facts before them match those given by the employer to support the dismissal but also to allow the employee to recognize the charges against him, to identify them, to take a position on them and report if any, evidence of their falsity (L’Actualité du Droit du Travail au Luxembourg, Tome 1, 2015, p. 234, Me GIABBANI).

The judges will engage in a thorough examination of the matter in question. This issue is what constitutes the bulk of the litigation in court.

The accuracy and the reality of the grounds on which the dismissal is based on are assessed by the courts for each reproach individually, while the serious nature, the legitimacy of the dismissal are evaluated and analyzed on the basis of either a single and isolated fact, but sufficient to justify the dismissal or many facts as a whole (L’Actualité du Droit du Travail au Luxembourg, Tome 1, 2015, p. 11, Me GIABBANI).David GIABBANI

David GIABBANI