201610.04
0

Repeated absences and uncertainty of improvement

On January 18th, 2010, M.A., at the employer’s service since 1st June 1998, was summoned to a preliminary interview and on 26th January 2010, was dismissed by mail with notice from 1st February to 31st July 2010. M.A. was excused from performance of work until the end of the notice. 

The letter of 26th February 2010 indicates that from 1st November 2008 the employee held the position of micro developer within a team of three other people and from 2007 to end of October 2009 he was the administrator for NT / networks within a team with two other people.

It is stated that from the 18th December 2007 to 15th October 2008, the employee was absent for 79 working days, and that these absences were justified by 16 medical certificates.

The letter indicates the dates of beginning and end of 13 periods of absence, and the dates of 7 afternoons of absence.

From 14th January to 13th December 2009, the employee was absent for 83 days, with 6 medical certificates and a certificate of hospitalization. From 14th September to 13th December 2009, the employee was absent for 13 weeks in a row.

The employer mentions the dates of 7 periods of absence.

He also mentions the dates of the many late arrivals to work, due to rehabilitation sessions.

The employer also mentions the dates of the 4 afternoons the employee was absent in January 2010 and the medical certificates for rehabilitation sessions two afternoons per week starting on 4th January 2010.

The employer states that because of the many and repeated absences, documented by health certificates ranging from periods of several days to several weeks, the employee was not able to fulfill the tasks assigned to him, causing discomfort to the company, and creating problems of organization and reorganization of the teams.

In a four-page document, the employer states all the measures he had to take regarding the organization and the impact of the absences on the progress of the development of the projects.

Because of the many disruptive absences, and the uncertainty of improvement of the situation, the dismissal was decided.

The precision of the reasons for dismissal

The employee criticizes the decision because according to him the reasons for his dismissal were not precise enough. The employer would not have made the connection between the functions of the employee, his periods of absence, the allegedly delayed tasks and the organizational measures taken.

The employer finds confirmation of this aspect of the judgment.

The termination letter must state the facts relied upon to justify the termination, to allow the employee to know the reasons for the dismissal and for the courts to assess the real and serious nature of the reasons.

The letter of 26th February 2010, described in item 2 above, shows the number of days the employee was absent from December 2007, the exact dates of periods of illness, details of the impact on the organization and advancement of the work, as well as the consideration of the employer that these repeated and regular absences create organizational problems, are contrary to the proper functioning of the services and the fact that it is uncertain or improbable that the situation will improve.

As retained by the Labor Court, the above mentioned letter meets the legal accuracy requirements.

The real and serious nature of the reasons

The employee criticizes the decision which concludes the real and serious nature of the dismissal.

He maintains that he was an involuntary victim of two accidents. In the 2007 a car accident, in which he lost his partner and was away for two months and, a few months after the accident, he was absent for a month due to the psychological consequences which followed the accident.

Due to a skiing accident in early 2009, he underwent knee surgery and was absent from 14th September to 13th December 2009.

After twelve years of service, these absences would not have justified the dismissal.

The employee also considers that the alleged inconvenience to the operation of the business is not established and that the alleged effects are not attributable to him.

The employer defends the court’s decision in that he holds that the dismissal was justified in light of the reasons given.

The reality of the invoked absences which justify the dismissal is established on the basis of medical certificates in question and their recognition by the employee.

The employee was therefore absent during the following periods (dates certified by the doctors):

– 18 to 27 December 2007

– 21 December 2007 to 7 January 2008

In 2008

– 7 to 14 January

– 14 to 21 January

– 21 to 26 January

– 1er to 11 February

– 11 to 18 February

– 19 to 22 February

– 26 to 28 March

– 31 March to 4 April

– 10 to 12 September

– 16 to 29 September

– 30 September to 15 October 

In 2009

– 14 to 16 January

– 16 to 21 March

  20 to 28 March

– 27 March to 3 April

– 14 to 18 September

– 18 September to 3 November

– 3 November to 13 December

Following the medical certificate dated 30th December 2009, the rehabilitation is not complete and will have to continue with two sessions of half a day per week from 4th January 2010.

The Court inferred from these repeated absences and prolonged absences that the employer had to, from December 2007 to December 2009 reorganize the work and the teams in order to achieve the planned work and modify the projects, and that these absences were in fact an inconvenience to the operation of the company.

During these periods of time, the employer was not able to obtain the execution of the employee’s contractual obligations and in January 2010, at the time of the dismissal, as well as during the period of the litigation, the employer did not have the certainty nor a reasonable expectation of the employee’s regular attendance and work performance.

In these circumstances, the dismissal of 26th January 2010, thus motivated, is justified by the company’s operating requirements. 

The appeal of the employee that the dismissal be declared unfair and that the employer be ordered to compensate his damage is thus unfounded. (C.S.J., 12/05/2016, n°40758 du rôle).