The incompetence is not a mistake
The employer who intends to dismiss an employee must respect the procedure of dismissal as follows: If one puts aside the dismissal for an economic reason, several reasons may justify the dismissal of an employee: dismissal is a mode of termination of the employment contract permanent contract at the initiative of the employerTo be valid, the termination must comply with a procedure that varies according to the grounds for dismissal invoked. What are the four main reasons related to the employee and which may justify his dismissal.
The allegations against the employee must be real (that is to say, verifiable), and that are serious enough to justify dismissal.
A fault or a breach of benin or isolated may not be a sound and serious reasons for dismissal. If the employer on the ground of discipline, it necessarily implies that he has accused the employee of having committed a fault.
The same goes for abandonment of position
The employee commits a foul as long as it does not comply with the instructions or the rules of discipline, operation or security issued by the employer or that it adopts an inappropriate behaviour (insults, violence, harassment). The non-observance of the schedule, or safety are a on the other hand. Dismissal for abandonment of position is a dismissal for misconduct. To be able to justify a dismissal, the misconduct must be sufficiently important, serious. A slight negligence, benign, may justify a warning but not a dismissal, except if it is repeated several times in spite of the injunctions of the employer. Three categories of misconduct may justify a dismissal. Important: it is the judges who appreciate the seriousness of the fault. An employer may very well invoke a serious fault and see it reclassified as ordinary negligence by the magistrates. It is of sufficient gravity to justify dismissal. The employee performs his her notice. He perceives his termination indemnity and compensation in lieu of paid leave that he was not able to take account of his departure from the company. It justifies the immediate departure of the employee he is not running his notice. He does not receive his termination pay, he retains, however, its compensation in lieu of paid leave. The highest in the scale of severity.
This fault implies an intent to harm the employee in respect of his business. He does not collect his severance pay, but retains his or her pay in lieu of paid leave.
Even in the case of dismissal for serious misconduct or gross negligence, the employer must follow the dismissal procedures. The unfitness of the employee and his position can be seen only by the occupational physician. The treating physician of the employee, or the medical council of social security can not. The employee may be dismissed for incapacity as of the moment it is no longer fit to occupy his post and that the employer has no other employment consistent with their physical capabilities to propose to him. The law work of the eighth of August has deeply modified the procedure of dismissal for incapacity. Before, it was necessary to distinguish between two types of dismissal for incapacity: From January, the new procedure is common to the two hypotheses. To the typical procedure described above, plus a visit to the occupational physician to see the incapacity (instead of two previously), the search for solutions of reclassification before the dismissal of the employee unfit and consultation of employee representatives (as the incapacity to be occupational in origin or not).
The employee was dismissed for incapacity, does not notice.
He perceives his pay, termination pay and pay in lieu of paid leave. The disease can never justify the dismissal of an employee.
This would constitute discrimination by reason of the state of health and in the termination pronounced for this reason would be void.
On the other hand, the absence of the employee (whether repeated absences of short or medium term or a long-term absence) may disrupt the operation of the service belongs to the employee. This disorganization, and it alone, can possibly justify the dismissal. Yet it is necessary that the employer supports the elements of this reorganization and that it justifies the need to permanently override the employee who is absent. Because if the permanent replacement of the employee is not vital, its dismissal is not justified. Attention If the employee is absent following an accident at work or an occupational disease, special rules are needed. The employee who was dismissed for repeated absences or long-term illness perceive their termination pay and pay in lieu of paid leave.
Except bad the deliberate intention of the employee, the incompetence does not constitute not a fault.
The employee just did not have the skills or the qualifications required to perform properly the job entrusted to him. The employer cannot simply argue that, in the termination letter, the incompetence to warrant termination of the contract. It needs the support of precise facts and verifiable that show how the employee is not at the height of the position and goals that are entrusted to him. It is also the case if, in support of the dismissal, the employer relied on a misunderstanding between colleagues. The specific facts and verifiable are here also necessary. The employee was terminated for unsatisfactory professional performs his her notice. He perceives his pay, termination pay and pay in lieu of paid leave.
This ground for dismissal must not be confused with incompetence (see above).
This motif is often invoked with regard to the commercial teams, which must meet quotas of sales or to achieve the quantified objectives specific. In itself, the non-achievement of the objective assigned to the employee are not sufficient to justify her dismissal. The judges check two important elements: The employee dismissed for insufficiency of results performs his notice. He perceives his pay, termination pay and pay in lieu of paid leave. The rates of subscriptions on our online store are guaranteed not to increase at their annual renewal. Your registration request has been taken into account. You will receive each month by email of our new articles and issues in open access. You can at any time unsubscribe by clicking on the link"I wish to unsubscribe"at the bottom of our emails.
