Dismissal of an employee sick
Thursday, February 17, 2011
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work on the employee's dismissal sick
Dismissal of an employee sick
The reasonableness of the replacement time of the employee dismissed because of his absence to illness and the need for its permanent replacement must be assessed under the date of dismissal. Dismissal of an employee sick
dismissal based on health status of an employee is discriminatory and therefore invalid (L. c. 1132-1 work.).
But case law recognizes the validity of the dismissal based not on the health of the employee, but the disturbances to the smooth running of the company that caused its absences.
The employer must take care to give reasons, with the greatest precision, the dismissal letter employee's sick.
Hence it must "be asserted in the letter of dismissal, on the one hand, disruption of business operations and, secondly, the necessity of replacing the employee, the judge must check whether it is final "
The high court decides on the starting point of the period for replacement of sick employee fired.
The dismissal of a sick employee can intervene only if the employer establishes, firstly, that repeated or extended absences employee's cause disturbances in the normal operation of the company and, secondly, that these disturbances require him to proceed with the permanent replacement of the sick employee.
If the employer can overcome the difficulties caused by the absence from work by hiring a temporary employee on fixed term contract, dismissal of an employee is sick zero (Soc. 2 March 2005, RJS, 2005, No. 503).
In other words, the conclusion of a permanent contract is a condition of validity of the dismissal of an employee ill (18 Oct Soc.. 2007, RTD 2007. 717; 6févr. 2008, D. 2008. AJ 619).
More specifically, the permanent replacement must be within a reasonable time after the dismissal, assessed in light of the specific business and the steps taken by the employer for recruitment (Soc. 10nov. 2004, Bull . Civ. V, No. 283, D. 2004. IR 3114; RJS 2005. 36, No. 30; JS Lamy 2004, No. 157-3; Soc. 16sept. 2009, No. 08-41879, Dalloz topical 30sept. 2009, obs. Perrin; JCP S 2009. 1504, obs. Martinon).
so doing, the Supreme Court poses a requirement of proximity between the employee's dismissal sick and hiring a new employee. Hiring does
can not be reached before the termination, breach of contract because the work can no longer be motivated by absences that have ceased (Soc. 5janv. 1999, RJS 1999. 111, No. 166).
It can not intervene too late, because it suffices to show that the permanent replacement of the sick employee is not required to compensate for its absence.
It is not necessary as long as the hiring of permanent contracts take place concurrently dismissal.
It can therefore take place after the dismissal, within a reasonable time.
But realistically, how long the employer can elapse between dismissal and hiring a new employee without risking cancellation of dismissal?
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