What is the time limit for bringing legal action before the Courts?

Employees have three months to file a lawsuit to contest dismissal.

This period runs:

• from receipt of notification of dismissal, if an employee is dismissed with immediate effect;
• from receipt of notification of the dismissal with notice, if an employee has not requested an employer to provide the reasons for the dismissal;
• from receipt of an employer’s reply, if an employee dismissed with notice has requested the reasons for the dismissal within the legal time limit and the employer has replied within the one-month time limit;
• from the day on which the employer should have responded to the employee’s request for reasons and did not do so.

This period is interrupted if the employee sends a letter to his employer (or his lawyer) in which he contests his dismissal.

ATTENTION: If a challenge is made too early at a time when the three-month period has not yet begun to run, it will not be effective.

The letter of objection starts a new period of one year to challenge the dismissal before the Labour Tribunal.

This extension of time may be useful where the case is complex or where settlement discussions are underway but may not be concluded within three months.

How and when to contest the grounds for dismissal?

An employer must state precisely the reasons for the dismissal, which must be real and serious.

In the case of dismissal with notice, an employer is not obliged to state the reasons for his decision in the letter of dismissal.

On the contrary, it is up to an employee to request them by registered letter.

To do so, employees have a period of one month from the day they receive a letter of dismissal.

An employer also has a period of one month from receiving a request for reasons behind a dismissal to provide a response to an employee.

The employer is required to state the reasons with sufficient precision that the statement reveals their exact nature and scope to allow:

• an employee to assess whether they are real and serious and to prove their groundlessness if necessary;
• a court to verify whether the reasons plead before it relate to those stated by the employer in his cover letter, such that it is not possible to add reasons to those found in the cover letter.

If no response is received within one month, the dismissal is deemed unfair.

Similarly, where no precise reasons are provided, the courts consider that there is no substantiation, which leads to determining an abusive dismissal.

If an employee challenges the employer’s grounds for dismissal in court, it is up to the employer to prove this by submitting written documents or calling witnesses.

Employees who fail to request the reasons for their dismissal will no longer be able to invoke the vagueness of the reasons given in the letter of motivation under a judicial appeal against their dismissal, and will have the burden of proof of the unfair nature of the dismissal.

For dismissals with immediate effect, the precise and detailed indication of the serious misconduct(s) of which an employee is accused must appear in the letter of dismissal.

If the reasons are not stated with the required precision in the letter of dismissal, the dismissal with immediate effect is considered unfair. Consequently, an oral dismissal for gross misconduct is ipso facto unfair.

Employers may, in the course of the proceedings, provide additional details in relation to the reasons stated in the letter of dismissal. However, the courts have ruled that an employer may not use evidence such as testimonies, testimonial evidence, etc., to make up for the lack of clarity in the reasons given in the letter of motivation/dismissal.

What does the motion to institute proceedings contain?

The lawsuit is filed in court by means of a petition that explains the circumstances of the case and indicates the amount of money that an employee wishes to obtain from his employer to compensate for the damages suffered as a result of the dismissal.

What will be the compensation for the damages suffered by the employee?

If the court comes to the conclusion that the dismissal is not based on a real and serious cause, it orders the employer either to reinstate the employee or to compensate the employee for damages suffered.

The law provides that the court may, at the request of the employee, recommend that the employer reinstate the employee as compensation for unfair dismissal, where the conditions are favourable for a resumption of the employment relationship.

If the employer approves such reinstatement, he is released from paying any damages. The employee’s seniority is preserved.

If the employer refuses to reinstate the dismissed employee, the employee may claim and obtain additional damages, in the amount of one month’s salary.

If the employee is not reinstated, these damages cover both the material and non-material damage suffered by the employee.

As far as material damage is concerned, it is only to be taken into consideration insofar as it relates to a period which should reasonably have been sufficient for the employee to find a new job, depending on age, qualifications, seniority, the job market, etc.

Dismissed employees must demonstrate that they have taken the necessary steps to find a new job. As a general rule, the courts consider that a period of four to six months should be sufficient for a jobseeker to find a new employer.

In order to assess the material loss suffered by an employee who has found a job with a new employer, but at a lower salary, only the salary actually earned, in gross amounts, with the new employer and the one received with the former employer, are to be compared.

It should be noted that any tips received by the employee are also taken into account in determining the material loss, as long as they correspond to a custom in the profession and to the normal expectations of the employee.

With regard to moral damage, the court takes into account various elements such as employees’ length of service, the seriousness of the attack on their professional dignity, age, family situation, etc.