DISMISSAL FOR MISCONDUCT IN THE HOSPITALITY INDUSTRY (1/2)
Cafés, hotels, restaurants, and nightclubs are sometimes forced to take disciplinary action against their employees.
Alternatives to dismissal exist: warnings, reprimands, suspensions, transfers, or disciplinary demotions. Dismissal should be the last resort for the hospitality outlet.
Many dismissals for misconduct are now the subject of legal proceedings initiated by employees before the labor court/Conseil des prud’hommes, even though the Macron ordinances have capped the amount of damages for unfair dismissal.
Therefore, hospitality businesses must exercise great care when notifying an employee of their dismissal for misconduct. The main pitfalls to avoid when terminating an employment contract are as follows:
1- The hotel, restaurant, and catering (HRC) establishment will pay close attention to respecting notice periods.
The probationary period in the HRC is:
- two months for employees, three months for supervisors, and four months for managers
- with the possibility of renewing it for the same durations (except for employees at level 1, step 1, where renewal is not possible).
During this period, the HRC establishment can terminate the employment contract by simply sending a registered letter with acknowledgment of receipt (LRAR) without following a dismissal procedure.
It will respect a notice period: 24 hours in advance if the hiring date is less than eight days old, 48 hours in advance if it is between eight days and one month old, two weeks if it is more than one month old, and one month if it is more than three months old.
After the trial period, if a hotel, restaurant, or catering (HRC) employer terminates an employee’s contract by simply sending a registered letter with acknowledgment of receipt (LRAR) without following the proper dismissal procedure, they risk being ordered to pay damages by the labor court.
This can happen, for example, if the employer believes they are still in the trial period when it has already ended.
For instance, they hired a Level 1, Step 1 employee on a one-month fixed-term contract (CDD), then on a permanent contract (CDI) with a one-month trial period. The fixed-term contract period counts towards the trial period, meaning they cannot terminate the permanent contract without following the proper dismissal procedure.
The dismissal procedure is as follows: the employer must send a summons to a preliminary dismissal interview at least five clear days before the interview is scheduled.
The notice of disciplinary hearing must state the employee’s right to be accompanied at this preliminary dismissal interview. This interview must not resemble an interrogation, which is why having more than two people representing the employer is considered grounds for invalidating the dismissal.
The hospitality must respect a two-day notice period before notifying the employee of the dismissal, which must be done by registered letter with acknowledgment of receipt. This disciplinary dismissal must be notified within a maximum of one month from the preliminary interview.
The dismissal letter must state the reasons for the dismissal. Therefore, it is advisable not to quote grievances that the hospitality outlet cannot prove, otherwise it risks being held liable.
2- The HRC ) will be vigilant in choosing the reason for terminating a fixed-term contract (CDD) as well as a permanent contract (CDI) and in classifying the misconduct.
• 2-1: When terminating a fixed-term contract, the HRC may only terminate a contract in progress after the trial period if the employee has committed serious misconduct or if it is impossible to maintain the contract (for example, a prolonged absence of the employee causing disruption to the company’s operations).
If the termination is for another reason, for example, simple misconduct after four months when the contract is for one year, the HRC must pay the employee the remaining wages due until the end of the fixed-term contract (eight months). The same applies if the HRC issues a dismissal notice for serious misconduct when it turns out not to be so.
• 2-2: When terminating a permanent contract, the employee’s misconduct may be characterized by an action or omission, whether intentional or unintentional.
- Minor misconduct cannot justify dismissal (e.g., one or two very occasional instances of lateness).
- Gross misconduct can, and the hotel, restaurant, or café (HRC) must pay the statutory notice and severance pay. Gross misconduct is of such a serious nature that maintaining the employee’s position within the company is impossible.
- Wilful misconduct implies, in addition, an intent to harm on the part of the employee (e.g., – intentional damage or violence, breach of confidentiality, soliciting clients, fraud, etc.). Both gross and wilful misconduct deprive the employee of notice and severance pay, but not of paid leave.
In any case, the statute of limitations for gross misconduct is two months from the date the facts are discovered. However, when the misconduct is cumulative and continues from the first instance, the latter can be dated more than two months prior.
In the event of gross or willfull misconduct by an employee, the HRC is advised to suspend the employee immediately and without allowing them to serve their notice period. Even if the hotel, restaurant, or café (HRC) has no one to replace the employee, allowing them to continue working could be considered a waiver of the right to dismiss for serious misconduct.
There is no standardized classification system for misconduct, as its definition is subjective. The nature of the misconduct is assessed based on the circumstances and the employee’s history (for example, whether they have committed misconduct previously).
The HRC is solely responsible for determining the nature of the misconduct when deciding whether to dismiss the employee. The employee has one year to contest his dismissal. The classification of the misconduct will be analyzed retrospectively by an employment tribunal (Conseil des Prud’hommes) petitioned by the employee, which will often issue a ruling a year and a half, or even two years later. Furthermore, each court, even each section, and each panel of judges will have its own interpretation of the misconduct.
Given the inherent uncertainty of the legal process, the HRC would be well advised to seek the assistance of a lawyer experienced in HRC labor law beforehand to reduce the risk of the dismissal being deemed unfair and therefore being ordered to pay damages. Thus, the lawyer will review the employee’s alleged misconduct with their client and advise the hotel, restaurant, or nightclub on the classification of the offense. This will allow the establishment to minimize the risk of imposing a disproportionate sanction on the employee and consequently being found liable by the Labor Court/ Conseil des Prud’hommes.
To categorize these offenses, there are those related to non-compliance with rules or procedures, and those related to the employee’s defective performance of their employment contract.
To be continued.