At short intervals, this is yet another decision protecting the action of employees before the labor courts for unfair dismissal. In the past few months, five labor tribunal boards have rejected the Macron prescription fee schedule. In a judgment of February 5, a professional magistrate of Agen (Lot-et-Garonne) dismissed, for the first time, the ceiling of compensation fixed for dismissal without cause real and serious. This new measure limits the compensation to which employees are entitled to a maximum of 20 months' gross salary, depending on the seniority of the employee.
But the presiding judge, who intervenes when the labor and employer advisers of labor and employers can not settle the dispute, has decided otherwise. He doubled the ceiling of the indemnity to which an employee could claim according to the new scale. The dismissed employee without real and serious cause will receive about 3,000 euros in damages. "My client should have received a maximum of 2 months salary, according to Macron orders, but the judge gave him 4 months salary," told AFP lawyer Camille Gagne.
"This is the first time a professional judge makes this type of decision," she continued. The file concerned an employee of a very small company, referred "verbally" overnight in December 2017 "because she had raised the issue of unpaid overtime the day before," according to the judgment. Subsequently, the boss considered a conventional break, finally rejected by the labor administration. The employer then sent her a letter of dismissal accusing her of being absent from her workplace.
According to the Macron ordinance, this injured employee would receive a "compensation of between 0.5 months and 2 months of gross salary, despite the circumstances of the termination of her employment contract and the economic and moral damage" suffered. The scale does not allow "adequate compensation or appropriate compensation, not providing compensation of an amount high enough to deter the employer and to compensate for the injury suffered by the employee," reads the judgment.
"Adequate compensation" and "appropriate compensation"
To justify his choice, the professional magistrate invoked Articles 24 of the European Social Charter and 10 of the International Labor Organization (ILO) Convention 158. These two texts, cited in the judgment, specify that an unfair dismissal must give rise to "adequate compensation" and "appropriate compensation" for the injury suffered by the employee. This assessment goes in the direction of several industrial tribunals, which had relied on these arguments to overcome the ceiling on industrial tribunal awards. Ratified by France, these international conventions may be worth more than the law.
For opponents of the Macron orders, this first decision by a departing judge marks a new stage in the "jurisprudence movement in construction," said Emmanuel Dockès, a professor and researcher in labor law at Paris Ouest-Nanterre University. The industrial tribunals of Troyes, Amiens, Lyon – twice – Grenoble and Angers have opened a breach. It remains to expand, obtaining confirmation of judgments on appeal, and then before the Court of Cassation.