Paris (AFP)

The capping of compensation for unfair dismissal, flagship measure Work orders, continues to stir: a court of appeal validated Wednesday but it left the possibility to the judge to deviate from the case by case, contrary to the visibility desired by the executive.

The Court of Appeal of Reims was to decide on a judgment rendered in December by the industrial tribunal of Troyes. The latter had found the Macron scale "in contradiction" with the protections provided for in cases of unfair dismissal in two international texts, the European Social Charter and Convention 158 of the International Labor Organization.

As a result, the board had awarded to a dismissed employee, who had less than two years of seniority, compensation of six months' salary, which was higher than that provided for in the scale (between 0.5 and two months in this case).

Since the reform of the labor code at the end of 2017, these damages (excluding dismissal for harassment or discrimination) are capped between one and twenty months of gross salary, depending on seniority and with a lower minimum floor in the companies of less than eleven employees. Previously, this minimum threshold was six months and the judges were not bound by a ceiling for high seniority.

In its judgment, the court said that this ceiling, contested by several industrial tribunals for months, "is not contrary, in itself," to international texts. It seems to follow the Court of Cassation in July judged this scale "compatible" with international law, much to the relief of the government and employers for whom it lifts "fear of hiring" in SMEs, reducing the cost possible dismissal.

Except that, at the same time, the Court of Appeal affirms that the judge remains free, in each particular case, to verify if this ceiling "does not carry a disproportionate attack on the rights of the employee".

For Hélène Melmy, the lawyer of the licensee, "the court of appeal opens a big gap" with "important perspectives for employees".

- "the battle continues" -

In its judgment, the appeals court even strongly criticizes the scale which provides "low ceilings compensation for low-seniority employees" as repetitive unions say that it deters employees from going to court.

It adds that the injury of an employee "is appreciated by taking into account also factors other than seniority". "Clasped between a floor and a ceiling, the judge prud'homal does not have any latitude to individualize the loss of employment loss," she wrote.

"It is a resistance asserted on the scale with a very strong argument," adds Bertrand Salmon lawyer in the social law of Cornet Vincent Segurel. "The legal battle continues!" Welcomed the union of lawyers of France.

In the case of Wednesday, however, the court said that the employee only requested it on a general control of the scale in relation to international texts. She should have solicited her on her particular case, which the judge can not do "on her own initiative". It thus invalidates the judgment of the labor courts and applies a compensation included in the scale, one month instead of six.

"The court said, if you had proven to me that your injury was above the Macron rate, then I could have granted your claim," says Salmon.

The next episode of the saga is expected on October 30 when the Paris Court of Appeal will make a judgment in another case.

"The risk is that a court of appeal says blank, another says black.It will be necessary to await a judgment of the Court of Cassation," said the lawyer.

In addition, the unions at the same time seized the European Committee of Social Rights which in 2016, under the European Social Charter, condemned Finland for a ceiling of ... 24 months.

"The uncertainty will continue for a long time while the government's goal was to give visibility," says Salmon.

© 2019 AFP