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Newsflash 09.06.2017

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Validity conditions of the disciplinary sanctions provided for by joint agreement

In a judgment dated 30 March 2017, the Court of Appeal clarified the validity conditions of the disciplinary sanctions provided for by a collective bargaining agreement.

The case concerned an employee who had been notified of the sanction of “demotion to a lower pay classification” provided for in Article 16.2 (7) of the Collective Agreement for Communal Workers of Municipalities of the South. The employee, who had been demoted from group 6, tier 273 to group 3, tier 206, had applied to the courts for the annulment of his sanction, on the ground that only the law could validly impose disciplinary sanctions on employees under the constitutional principle of “lawful punishment” (“principe de légalité des peines”).

The Court of Appeal had decided, in the first place, that the disciplinary sanction for the reduction of wages had a sound legal basis as long as it was provided for in the collective agreement or in the employment contract, to which the law itself refers to derogate from its provisions in a way that is more favourable to the employee (Court of Appeal, 30 June 2016, N. 42278 of the register).

However, there was also the question of the wording of the sanctions. The Court of Appeal stated in June 2016 that, in order to comply with the principle of lawful punishment, a disciplinary sanction provided for by collective agreement must also be “determined in such a way as to enable the person concerned to predict, with a sufficient degree of certainty, the nature and degree of the sanction likely to be imposed”.

This is the point which the Court of Appeal ruled on in the judgment of 30 March 2017.

The Court considered that the wording “demotion to a lower pay classification” was too vague and imprecise to allow the employee to predict the severity of the sanction.

Indeed, contrary to the language of the seven other sanctions provided for in the same collective agreement, this wording does not specify: 

  • the determining criteria for the choice of wage category in which the employee may be placed; 
  • the lower limit of demotion, even though its influence on wages may vary significantly depending on the category to which the employee is demoted; 
  • the duration of the application of the sanction over time; 
  • a possible period after which the employee will recover his/her right to a promotion or advancement according to his/her seniority.

In these circumstances the Court of Appeal found that the evaluability of the sanction was deficient and that its wording did not meet the precision requirements of the principle of lawful punishment. It therefore confirmed the annulment of the sanction imposed on the employee.

Court of Appeal, 30 March 2017, n°42278 of the roll