201603.21
0

Notification of the reasons for the termination to an old address

linkedinArticle L.124-5 of the Labor Code obliges the employer to provide within one month, the reasons for dismissal to the employee by registered letter. If the employer doesn’t respect this time limit, then the dismissal will be declared unfair.

It goes without saying that such communication is devoid of any legal effect if it was not properly notified to the employee and if was not aware of it.

In this particular case, Company A does not establish that it has communicated to B the grounds for dismissal within the statutory period of one month provided for by Article L.124-5 of the Labor Code. Indeed, the assumption made by the employer that the employee « refused to receive » the letter sent to him by registered letter dated 27 February 2013 at the same address as the dismissal letter that she had received a few weeks before is disproved by the return of the registered letter of 27 February 2013 on which it is indicated « Return to sender, not at this address ».

Furthermore, the fact that ‘B hadn’t lived at the address the letter was sent to for over a year and that she had duly informed her employer of the move, is also proven by the fact that the new address was already indicated on the payslip of January 2012.

It follows that the registered letter sent on the 27 February 2013 had no legal effect, since its recipient was not aware of it.

It is therefore rightly so that the trial court considered that the notification of the reasons for the dismissal with notice to the old address of the employee, where she could not receive the letter, was irregular and that the subsequent notification of the same letter to the new address of the employee was passed the deadline.

In the alternative, company A argued that B put forward no concrete evidence by which the receipt of the communication of the reasons for the dismissal on March 5, 2013 may have been any infringement of its rights of defense. Such an approach would be absolutely contrary to the requirements of realism and social equity. It argues that behind the following form requirement which declares any dismissal, whatever the reasons underlying the dismissal and their essential value, unfair if the employer has not effectively reacted to the request for the communication of the reasons for dismissal made to him/her​​, could hide flagrant injustices contrary to any reasonable management.

B resists arguing that it is not a matter of form but of prescription which is therefore of public order, that nobody is supposed to derogate and that Article 173 paragraph 2 of the NCPC is not applicable.

According to the conclusions of the respondent, the one-month period provided for in Article L.124-5 of the Labor Code is not a mere procedural rule but a requirement which affects the substance of the law insofar as the non-compliance with the deadline has the effect of making the dismissal unfair. The provisions of Article 173 of the NCPC are therefore not applicable in this case. (C.S.J., 10/12/2015, n°41949 du rôle).