No, a job guarantee clause in the event of sick leave does not prohibit the dismissal of the employee for another reason

No, a job guarantee clause in the event of sick leave does not prohibit the dismissal of the employee for another reason

This is what the social chamber of the Court of Cassation has just recalled in a judgment delivered on February 8, 2023. (No. 21-16.805)

Many collective agreements contain so-called termination clauses. "employment guarantee" which prohibit the dismissal of employees during the suspension of their employment contract for illness.

Often old, these clauses were intended to compensate for the legal deficiencies that existed before the promulgation of the law of July 12, 1990 prohibiting the dismissal of employees because of their state of health. (Law No. 90-602 of July 12, 1990 on the protection of persons against discrimination due to their state of health or disability).

The question nevertheless regularly arose as to whether, despite an employment guarantee clause, it was possible to dismiss an employee on sick leave for a reason other than the disorganization caused by the employee's absence and the need to its permanent replacement?

This is the question answered by the Court of Cassation with regard to the job guarantee clause provided for in Article 16 of the national collective agreement for metallurgical engineers and managers in its wording prior to its repeal.

But in reality, far from being a specific judgment limited to the interpretation to be given to these conventional provisions alone, it seems to be a judgment of principle applicable to all collective agreements.

Article 16 of the national collective agreement for metallurgical engineers and managers did not strictly speaking stipulate a job guarantee clause but limited the possibilities of dismissing employees absent due to illness to the sole assumptions of: 

• collective licensing, 
• job suppression.

Court of Appeal (Poitiers Court of Appeal, Social Chamber, March 18, 2021, No. 19/01123) concluded that these provisions:

• granted an employee arrested for illness a “true job guarantee”,
• limited the possibilities of dismissal to the two aforementioned grounds,

and noted the character devoid of real and serious cause of the dismissal of the employee based on his professional inadequacy.

Given the wording of the text, including a reading Conversely seemed to prohibit dismissal for a reason other than those provided for, the solution seemed logical but not for the Court of Cassation, which overturned this decision.

It recalls first of all that when a collective agreement lacks clarity, it must be interpreted as the law, that is to say first by respecting the letter of the text, then by taking into account a possible legislative text having the same object and, as a last resort, by using the teleological method consisting in seeking the social objective of the text.

Then, if it confirms that the provisions of Article 16 do establish a guarantee of employment: 

• however, it limits the scope of these only to dismissals based on the consequences of the illness and the need to replace the employee,
• and considers, despite the restrictive grounds for dismissal expressly provided for, that it does not prohibit dismissing him for any other reason.

Some will not accept this interpretation and will intend to limit the scope of the judgment to the national collective agreement for metallurgy executives alone.

However, the decision handed down seems to have to fix the reading grid applicable to all the existing contractual provisions.