What is the time limit for bringing the action?

Employees have a period of three months to file a lawsuit. This period runs from:

• time of the notification of the letter of dismissal for termination with immediate effect;
• time of the notification of dismissal, if the employee dismissed with notice has not requested the reasons for the dismissal;
• the notification of reasons for dismissal if the employee dismissed with notice has asked for the reasons and if the employer has replied within the legal time limit of one month;
• the expiry of the one-month period within which the employer must respond to the employee’s request for reasons, if the employee dismissed with notice has requested the reasons and the employer has not responded within the legal period.

The three-month period is interrupted if the employee submits a written complaint to the employer. In this case, a new period of one year starts to run.

In order to interrupt the three-month period, the complaint must be addressed to the employer himself.

If it is addressed to a third party, it has no effect.

However, the employer’s lawyer is not to be considered a third party if he has been mandated by the employer.

ATTENTION:

If the complaint was made at a time when the three-month period had not yet begun to run, it shall have no effect.

How is the process started?

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 the employee wishes to obtain from his employer to compensate for the damages he suffered as a result of the dismissal.

This petition may be drafted either by an employee himself or by a lawyer. It must be filed in several copies with the clerk’s office of the Labour Tribunal, which summons the parties to the hearing

Who has the burden of proof of the reasons for dismissal?

If the employee challenges the employer’s grounds for dismissal in court, it is up to the employer to provide the proof of these grounds, by submitting written documents or calling witnesses.

In the course of the proceedings, the employer may provide additional details to the reasons stated in the letter of dismissal. However, the employer may not use evidence (e.g. testimony, witness statements, etc.) to make up for the lack of clarity in the reasons given in the letter of dismissal.

How is the distribution of the damage suffered by the employee determined?

• If the court concludes that the dismissal has a procedural defect due to the violation of a substantial formality, without the dismissal being abusive in substance, it orders the employer to pay the employee compensation which may not exceed one month’s salary.

This compensation cannot be granted when the court finds the dismissal to be unfair in substance.

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

The damages cover both material and non-material damages suffered by the employee.

As regards material damage, it is only to be taken into account insofar as it relates to a period which should reasonably have been sufficient for the employee to find a new job.

The dismissed employee must demonstrate that he or she has 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 the employee to be hired by 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 gratuities 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 meet the employee’s normal expectations.

As regards non pecuniary damage, the court takes into account various elements such as the employee’s length of service, the seriousness of the discredit on his professional dignity, his age or his family situation.