Dismissal for simple, serious or serious misconduct: what consequences for the employee?
Verified 14 June 2024 - Directorate for Legal and Administrative Information (Prime Minister)
An employee may be licensee for simple fault, gross negligence or gross negligence to the end of disciplinary proceedings. The consequences of dismissal on the rights of the employee are different according to pattern of dismissal retained by the employer. We'll give you the information you need to remember.
Simple fault
The simple fault meets the following 2 criteria:
- Employee's action contrary to obligations in respect of the employer
- Insufficient Severity to enforce the immediate rupture of the employment contract
However, misconduct may, in some cases, constitute a real and serious cause of dismissal.
Simple fault may be recognized, for example, in the event of an error or negligence committed by the employee in the course of his work.
The same fact may be classified as a simple or serious misconduct. The classification of the fault may take account of criteria such as seniority, the employee's duties in the company, but also the background or repetitive nature of the fault.
The employer must follow the procedure for dismissal on personal grounds.
Yes, the employee receives a severance pay if he fulfills the conditions of seniority enabling him to benefit from them.
In principle, the employee must make a notice. However, it may be dispensed with.
Compensation for the notice differs according to the following situations:
- Advance notice by employee
- Waiver by employer of notice
- Employee waiver request for advance notice
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The employee gives notice
The employee shall be paid an advance payment corresponding to his normal salary.
The employee is exempted from notice by the employer
The employee is not working. The employer pays her a compensatory period of notice corresponding to the salary he would have received if he had worked during that period.
The employee asks the employer not to give notice
If the employer agrees, the employee does not work. He doesn't get any moneycompensation for notice.
Yes, the employee receives a compensatory allowance for paid leave if he meets the conditions.
Yes, the employee who meets the conditions, including a minimum period of work, may benefit from Return to Employment Assistance (RWA).
An employee who disagrees with his employer on the nature of the fault and on the dismissal may to refer the matter to the labor council.
It is the judge who determines whether the employee has committed a fault and whether it is a simple fault.
The judge may also order the employer to pay penalties for wrongful dismissal or to cancel the dismissal.
Serious misconduct
Serious misconduct meets the following 2 criteria:
- Employee's action contrary to obligations in respect of the employer
- Severity of the fault and impossibility of keeping the employee in the companyeven for the duration of the notice.
The seriousness of the fault shall be considered in the light of the circumstances of each case.
Serious misconduct may be recognized even if the misconduct is committed for 1re times.
In practice, serious misconduct is often allowed in the following cases:
- Drunkenness during working hours
- Unjustified absences
- Indiscipline or insubordination of the employee (refusal to perform a work task provided for in the contract)
- Harassment, violence or insult to the employer or other employees
- Flights in the company.
The employer must comply with the dismissal for personal reasons.
No, the employee does not receive any benefitsseverance pay.
No, the employee does not receive a notice allowance. Serious misconduct deprives the employee of the rules concerning the notice.
Yes, the employee receives a compensatory allowance for paid leave if he meets the conditions.
Yes, the employee who meets the conditions, including a minimum period of work, may benefit from Return to Employment Assistance (RWA).
An employee who disagrees with his employer on the nature of the fault and on the dismissal may to refer the matter to the labor council.
It is the judge who determines whether the employee has committed a fault and whether it is a serious fault.
The judge may also order the employer to pay penalties for wrongful dismissal or to cancel the dismissal.
Heavy fault
The gross negligence meets the following 2 criteria:
- Lack of a particular gravity, revealing intent to harm the employer
- Situation which makes it impossible for the employee to remain in the companyeven during the period of notice
In practice, gross negligence may be accepted in the following cases:
- Blocking access to the company for non-striking employees by striking employees
- Voluntary degradation of a company tool
- Physical violence and threat of death against the employer
- Sequestration of a company staff member
- Diversion of customers to a competitor
- Disclosure of secret or confidential information
The employer must comply with the dismissal for personal reasons.
FYI
If the misconduct has caused injury to the employer, the employee may be ordered by the judge to compensate him by paying the employer damages.
No, the employee does not collect severance pay.
No, the employee does not receive a notice allowance. Gross negligence deprives the employee of the rules concerning the notice.
Yes, the employee receives a compensatory allowance for paid leave if he meets the conditions.
Yes, the employee who meets the conditions, including a minimum period of work, may benefit from Return to Employment Assistance (RWA).
An employee who disagrees with his employer on the nature of the fault and on the dismissal may to refer the matter to the labor council.
It is the judge who determines whether the employee has committed a fault and whether it is a serious fault.
The judge may also order the employer to pay penalties for wrongful dismissal or to cancel the dismissal.
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Entitlement to compensation for notice
Right to severance pay
Right to compensatory leave with pay