The legislator has authorized a new case of early termination of the Fixed-Term Contract: the physical incapacity of the employee noted by the occupational physician. The bill was adopted definitively and published on May 18, 2011 in the Official Journal.This therefore becomes Law 2011-525 of May 17, 2011. It has been applicable since May 19, 2011.
Under the terms of article 49 of the proposed law of “ simplification and improvement of the quality of law », Certain provisions of the Labor Code should be amended in order to allow the employer to terminate the fixed-term contract of an employee declared unfit and who cannot be reclassified in the company in advance.
This proposal was adopted by the National Assembly on April 13, 2011, and by the Senate on April 14, 2011. Currently, it is the subject of an appeal before the Constitutional Council (appeal however relating to an article other than the article 49 concerned here). A priori, the law should therefore soon be published in the Official Journal.
After recalling the current situation of an employee with a fixed-term contract when he is declared definitively unfit for his job, it will be advisable to present the text of the new provisions, then to try to draw the first lessons.
The situation before 2011 of an employee with a fixed-term contract declared definitively unfit for his job
Before 2011, a CDD can only be broken in one of these cases: agreement of the parties, force majeure, signing of a CDI or serious misconduct.
According to settled case law, the physical incapacity of the employee, whether or not it has a professional origin, cannot constitute a case of serious misconduct.
Remember that of course, only the Occupational Doctor can pronounce the definitive incapacity.
In other words, the early termination of the fixed-term contract by the employer on the grounds of this definitive incapacity will be qualified as abusive and will give the employee the right to compensation.
The financial consequences and the amount of severance payments to which the employee can claim (and which can moreover be allocated by the Labor Judge) depend on the origin of the definitive incapacity: work accident or sick leave.
In the event that the employee's definitive incapacity results from an accident and stoppage of work, the damages will be calculated in accordance with article L.1243-4 of the Labor Code, namely an amount at less equal to the remuneration that the employee would have received until the end of his contract (this indemnity being, moreover, for tax purposes, up to the salaries still due, qualified as salary remuneration, and therefore chargeable and taxable).
However, this rule is unfortunately not transposed to the case of fixed-term contracts and definitive incapacity following an illness (that is to say, without accident and sick leave).
In this second hypothesis, the employee who could not be reclassified is no longer required to come to work, but the employer, who cannot unilaterally terminate his contract on the grounds of this definitive incapacity, is no longer required to pay him his remuneration.
Indeed, the Court of Cassation was able to judge (in particular Cass. Soc. 31.10.2005, n ° 04-40.537 and 26.11.2008, n ° 07-40.802:
« The employee's physical incapacity does not constitute a case of force majeure authorizing the early termination of the fixed-term contract, but such incapacity and the impossibility of the reclassification of the person concerned does not nevertheless give rise to the right to payment of the remaining salaries. run until the end of the contract or the award of damages compensating for the loss thereof.
It follows that even if the employer has wrongly terminated the fixed-term employment contract binding him to his employee, the latter is not entitled to remuneration if he could not effectively perform his duties.».
It should be noted, however, that if the employer has failed in his obligation to reclassify, the employee has the possibility to appeal to the Labor Judge for a judicial termination of the contract and may request an allowance for damages, the assessment of which will then be left. to the sovereign appreciation of magistrates and will depend on the damage actually suffered.
In practice, and in particular for customary fixed-term contracts covering several years (as is the case for professional football players), there is a real difficulty here.
In summary, there were two scenarios:
Fixed-term contract + work accident + definitive incapacity: in the absence of reclassification, the employee is entitled to the minimum compensation calculated according to article L.1243-4 of the Labor Code
Fixed-term contract + work accident + definitive incapacity: in the absence of reclassification, the employee is entitled to the minimum compensation calculated according to article L.1243-4 of the Labor Code
However, this outline will now have to be reviewed in the light of future provisions resulting from article 49 of the proposed law on “simplification and improvement of the quality of law”.
Article 49 of the law on "simplification and improvement of the quality of law"
Article 49 of the proposed law on "simplification and improvement of the quality of the law" proposes to modify certain articles of the Labor Code in order to allow the early termination of the fixed-term contract for permanent incapacity.
This article 49 is worded as follows:
Article 49
I. - In article L. 1243-1 and in the first paragraph of article L. 1243-4 of the labor code, the words: "or of force majeure" are replaced by the words: ", of force majeure or incapacity declared by the occupational physician ”.
II. - Subsection 1 of section 2 of chapter VI of title II of book II of the first part of the same code is supplemented by two articles L. 1226-4-2 and L. 1226-4-3 thus worded:
“Art. L. 1226-4-2. - The provisions referred to in Article L. 1226-4 also apply to employees on a fixed-term employment contract.
“Art. L. 1226-4-3. - The termination of the fixed-term contract pronounced in the event of incapacity gives the employee the right to compensation, the amount of which may not be lower than that of the compensation provided for in article L. 1234-9. This termination indemnity is paid under the same terms as the precariousness indemnity provided for in article L. 1243-8. "
III. - Article L. 1226-20 of the same code is amended as follows:
1 ° In the first sentence of the second paragraph, the words: "request a judicial resolution" are replaced by the words: "proceed to the termination";
2 ° The second sentence of the second paragraph is deleted;
3 ° Are added two paragraphs thus worded:
“The provisions referred to in Articles L. 1226-10 and L. 1226-11 also apply to employees on fixed-term employment contracts.
“The termination of the contract gives the employee the right to compensation the amount of which may not be less than double that of the compensation provided for in article L. 1234-9. This termination indemnity is paid under the same terms as the precariousness indemnity provided for in article L. 1243-8. "
IV. - In the first paragraph of articles L. 2412-2, L. 2412-3, L. 2412-4, L. 2412-7, L. 2412-8, L. 2412-9 and L. 2412-13 and in articles L. 2412-5, L. 2412-6 and L. 2412-10 of the same code, after the word: "serious", are inserted the words: "or incapacity ascertained by the occupational physician".
What first lessons can be drawn from these future arrangements?
The legislator now intends to unify the two scenarios described above (I) and will authorize, whatever the origin of the definitive incapacity, the anticipated termination by the employer of the fixed-term employment contract on the grounds of said incapacity.
Conditions
The law modifies articles L.1243-1 and L.1243-4 of the Labor Code in order to allow the termination of the fixed-term contract, before its expiry, in the event of "incapacity observed by the occupational physician". This incapacity may or may not be of professional origin. The judicial resolution opened by article L.1226-20 al. 2 of the Labor Code for incapacity of professional origin is, by the same, deleted.
The law also specifies that the provisions of article L.1226-10 of the Labor Code, requiring the employer to reclassify the employee "when, at the end of the periods of suspension of the employment contract following an accident in work or an occupational disease, the employee is declared unfit by the occupational physician to resume the job he previously held ", are also applicable to employees on CDD.
The early termination of the fixed-term contract can therefore only be considered if it is impossible to reclassify the person concerned in the company. This search for reclassification must be carried out on the basis of the conclusions of the occupational physician and, if the incapacity is of professional origin, after consulting the staff representatives.
Severance indemnities
This early termination "gives the employee the right to an indemnity the amount of which may not be lower than that of the legal indemnity" for dismissal if the incapacity is not of professional origin (L.1226-4.3 Labor Code) and double it if the incapacity is the result of an accident at work or an occupational disease (L.1226-20 Labor Code). The one-year seniority condition provided for on a permanent contract is not repeated here.
The compensation is paid at the end of the contract, at the same time as the last salary (article L.1243-8 of the Labor Code).
The precariousness indemnity (equal to 10% of the total gross remuneration paid to the employee) is also due in this case (unlike cases of serious misconduct and force majeure). However, the precariousness premium is not normally due for a customary fixed-term contract.
Failure to reclassify or terminate
In the absence of reclassification or early termination of the fixed-term contract within one month of the date of the medical examination for resumption of work, the employer will be required to pay the employee again, as soon as the deadline expires, corresponding to the job he held before the suspension of the contract.
Currently, this rule does not apply to fixed-term contracts (see, for example, Cass. Soc., May 19, 2010, n ° 09-40633).
Coming into force
The law does not make any provision as to its entry into force. The provisions should therefore apply from the day after publication in the Official Journal.
Nevertheless, many questions will still arise, at least on a transitional basis, as to the modalities of application.
Thus, for example, will the device be applicable only to employees whose incapacity has been duly noted from the date of entry into force of the text? Where will it be applicable to employees whose incapacity has been recognized previously and who are awaiting the end of their contract? What exactly will be the fiscal fate of the allowance allocated? Under what circumstances will the employee's refusal of a reclassification proposal be likely to deprive him or not of being able to contest said termination? And what will be the impact on the compensation due? etc ...
It is therefore still advisable to remain cautious about the lessons to be drawn from this law.
The doctrine, then the jurisprudence, will certainly help us as the specific cases progress.
