Dismissal during a sick leave is possible on the condition that the employee works at a competitor’s place of business during his absence from work. His sick leave was then abusive and the employer’s prejudice was certain without having to prove it.
It is in these terms that, in its decision of 28 January 2015 (CAS civ ch. soc. 28.01.2015, no.13-18.354), the Court of Cassation validates the dismissal of an employee during a sick leave.
Let us analyse the Court’s decision in more detail in order to inform the heads of enterprises and their advice in their strategy and decision-making with regard to sanctions and dismissal of staff on sick leave.
Dismissal of an employee during sick leave
Hotel-restaurant Tivoli hired an employee in 1986.
Almost 15 years later, the employee rose in the company’s hierarchy and took up the position of management attaché at the end of 2000.
Her employment contract was suspended because she served as Chief Executive Officer between January 2001 and June 2009.
From July 1, 2009, the employee finds her job and her employment contract resumes.
However, as soon as the accident occurred, she went on sick leave because of a nervous breakdown.
On 19 November 2009, during her sick leave, her employer informed her of her dismissal for serious misconduct on the basis of three grounds, the main one being that she had worked for her during her sick leave.
By judgment of 12 August 2011, the Colmar Labour Relations Board considered the dismissal to be without real and serious cause and ordered the employer to pay the total sum of approximately 45,000 euros.
The employer appealed and, in its judgment of 28 March 2013, the Court of Appeal of Colmar held that the employee had been employed during her illness since 7 September 2009.
The private detective collects evidence of the employee’s activity during his sick leave
A private investigator investigated and documented evidence of this work in his report, which gathered:
- Her own findings from the employee in another hotel in Switzerland, every day of the week from 7:30 am to 12:30 pm
- several testimonies confirming that the employee runs this hotel in Switzerland, Apartments Schützenmatt SA
- an advertisement in German language of this hotel which specifies that the employee is the manager
The Colmar Court of Appeal noted that the private investigator’s investigation did not violate the employee’s privacy and that :
“the fact of exercising a professional activity during a work stoppage is analysed as a breach of the employee’s duty of loyalty towards the employer;
(…) this fault necessarily made it impossible to maintain it in the enterprise since it was engaged in another professional activity;
Whereas it was therefore a serious fault;”
The employee questioned the veracity of the information reported by the private detective and indicated that her presence at the Apartments Schützenmatt hotel was justified for personal reasons and that she did not engage in any professional activity there.
The employee appeals in cassation.
The Court of Cassation confirms the dismissal of the employee for serious misconduct
In its judgment of 28 January 2015, the Court of Cassation dismissed the employee’s appeal considering that :
“the exercise of an activity during a work stoppage caused by illness does not in itself constitute a breach of the duty of loyalty, unless the act committed by an employee during the suspension of the employment contract causes prejudice to the employer or the undertaking”.
And thus concludes his expectation :
“the exercise of such an activity necessarily causing prejudice to the employer, a breach of the duty of loyalty making it impossible for the employee to remain in the company”
In conclusion, dismissal during a sick leave is entirely legal provided that the offending employee works for a competing company during his sick leave.
The private investigator can provide evidence of this abusive illness without there being an infringement of the employee’s privacy and without the constraint of article L1222-4 of the Labour Code.
Finally, to the extent that the offending employee works in the same sector of activity as his employer, there is necessarily a prejudice, even if his place of activity is located in a very distant geographical area, several hundred kilometres or even abroad in this case.
All this allows the employer to dismiss his unfair employee for serious misconduct.
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