The decision of the Joint Sessions
The Labour Division of the Court of Appeal with interlocutory ordinance no. 24766 of last October 19th of 2017, referred to the First Chairman, for eventual assignment to the Joint Sessions, the issue of invalidation or temporary ineffectiveness of dismissal for exceeding the respite period, ordered before same respite period.
In the above mentioned decree the Labour Division acknowledges, in particular, the existence of jurisprudential conflict on the matter of the two principle positions.
A first position – of the majority – considers that the employer’s ordered dismissal, for just-motive, before the end of the respite period, is only temporarily ineffective. In other terms, it is absolutely valid only if its effectiveness is suspended until impending reason (suspension for state of illness or expiry of the respite period). The regulatory foundation of this theory has been identified in the principle of conservation of legal acts deducible from article 1367 of the Civil Code, applicable to the dismissal order pursuant to the reference made in article 1324 of the Civil Code, to unilateral acts.
A second position, on the other hand, sees that the dismissal before the expiry of the respite period is invalid. This different theory is based on the consideration that only the excessing of this period of respite recognises the employer’s right to withdraw from the contract, without necessity for a just-motive. Consequently, prior to this exceeding of the respite period, it would not be possible for the employer to release himself from the contract as there would be a lack of legal requirement prior to the communication of the dismissal. The dismissal must, more specifically, be considered totally invalid for the violation of the mandatory regulation referred to in article 2110 of the Civil Code, by virtue where the dismissal is prohibited during the course of the employee’s illness.
Due to the identified contrast between the different legal consequences arising for the worker depending on the accepted theory, one hopes for a conclusive intervention from the Joint Sessions. (GC)
