With its order no. 30478 of 28 October 2021, the Court of Cassation ruled that the employer is not obliged to warn the employee who cannot work about the imminent achievement of the maximum relationship protected period, nor to suggest alternative means to the absence due to illness (holidays, leave of absence).
Facts of the case
The case originates from an appeal against an employee’s dismissal for exceeding his protected period, which was based on the concept that the employer should have informed him of the imminent expiry of his protected period.
The Court hearing the case, declared the dismissal unlawful, while the Court of Appeal overturned the decision of the first instance. The unsuccessful employee appealed to the Court of Cassation.
The Supreme Court of Cassation’s ruling
The Court of Cassation confirmed the dismissal’s legitimacy, and noted that in the absence of any obligation under the collective bargaining agreement, the Company did not have to warn the employee of the imminent expiry of the protected period for illness to allow the employee to exercise the right to request a leave of absence.
According to the Court of Cassation, the dismissal in question is justified by the prolonged objective absence due to illness, exceeding the maximum duration set out in the sector NCLA and, therefore, the impossibility to work. Such dismissal was not disciplinary and prior notification of absence is not required. The employer did not have to provide the employee with a list of absences at the time of dismissal but only if requested after the dismissal.
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