Dismissal for Misconduct in the Hotel, Restaurant, and Catering (HORECA) Sector (2/2)
Expert Opinion: Sophie Petroussenko, Attorney at Law for UMIH Île-de-France, HORECA Specialist
1- Misconduct Related to Breaches of Rules or Non-Compliance with Procedures
The most frequent examples of serious misconduct:
- Job Abandonment
The employee leaves abruptly and does not return, thus disrupting the operation of the HORECA.
An employee who leaves their post abruptly should not be considered to have resigned, as resignation must be clear and unequivocal. The employee must be formally notified to justify their absence and return to work, but this requires time as it is necessary to wait for the employee’s response. A salary deduction may be made.
Sometimes, the employee leaves without cause, and sometimes they accuse the HORECA manager of misconduct (for example: failure to respect working hours, non-payment of overtime, etc.). In this case, the employee often acknowledges the termination of their permanent contract due to the employer’s misconduct.
There may be a time lag between their departure and when they send a registered letter with acknowledgment of receipt (LRAR) to the employer.
In any event, the dismissal procedure must be followed (which is also more favorable to the employee in terms of unemployment benefits). If the employee has a serious grievance against the employer, it is advisable to try to resolve the issue amicably to avoid legal proceedings.
However, if the employer is not at fault in the performance of the employment contract, it is advisable not to wait for the employee to send a registered letter with acknowledgment of receipt. The employer would benefit from summoning the employee to a preliminary meeting as soon as the job abandonment occurs, especially if the employee is accused of grievances in addition to job abandonment. This will allow them to anticipate an abusive resignation and ensure that the dismissal is carried out correctly.
The hospitality outlet will thus attempt to avoid abusive claims for damages by the employee.
– Unjustified absences
After asking the employee for the reason for these absences, and in the absence of a valid justification, the hospital can deduct this absence from the employee’s salary, noting “unjustified absences as of…”.
This absence must be genuinely unjustified and disrupt the hospital’s operations (e.g., customer service).
If the employee’s absence is justified by a workplace accident or sick leave, the hospital cannot issue a dismissal notice, except in cases of serious misconduct.
In these latter cases, it is advisable, though not mandatory, to wait until the end of the suspension period of the employment contract before initiating the dismissal procedure for serious misconduct. Otherwise, it may be considered that the illness or workplace accident was the reason for the dismissal, the dismissal may be overturned, and the hospitality outlet may be ordered to reinstate the employee (with its agreement) or pay damages to the employee.
- Aggression, insults, and denigration by an employee towards colleagues or management
This can often occur during customer service or at a hotel reception during peak arrival and departure times, as well as in other circumstances. It is advisable to ask customers and employees for statements and to file a police report.
- Alcohol at work
The employer’s obligation is to ensure the health and safety of their employees and, therefore, to prohibit alcohol at work. If the employer tolerates it, it will be more difficult to raise this issue.
To establish serious misconduct, it is necessary to prove the employee’s intoxication and its harmful consequences (e.g., a drunk waiter who insults customers).
The hospitality industry should take care to gather witness statements. Note: Employee testimonies are valid but carry less weight given their subordinate position, so other forms of evidence are required (e.g., customer statements).
The use of breathalyzer tests by the hospitality industry (CHR) must be stipulated in its internal regulations (Cass, soc, 22/5/2002), which are mandatory for companies with at least 50 employees (Pacte Law passed on 11 April 2019). This use is only justified for employees in positions where intoxication poses a danger (e.g., driving, operating machinery, cooking equipment for a cook…). If the employee is drunk and there is no danger, there is no possibility of subjecting them to a breathalyzer test. Furthermore, this evidence will only be admissible if the employee can contest the results of the breathalyzer test.
Notification of dismissal for misconduct will still be possible.
- Drug use or even sale
This can happen in hotels, bars, and restaurants. For example, a bartender might have cocaine delivered and pay for it with cash from the till without the hotel/restaurant manager’s knowledge. The issue of proof is more difficult but not impossible (e.g., the presence of security cameras, customer testimonies, etc.), and if the police intervene, there will be interrogations and hearings.
In this case, it is advisable for the hotel/restaurant to file a criminal complaint in addition to the dismissal. This will allow them to corroborate their evidence and distance themselves from the employee’s actions, thus preventing the manager from facing criminal charges and the hotel/restaurant from being subject to administrative closure.
- Cash register errors
In principle, no salary deductions are possible because financial penalties are prohibited. The hospitality outlet will often initially opt for a warning, provided it is certain the employee committed these errors. Unless, of course, the error is so serious as to warrant dismissal!
- Theft by the employee
This could involve bottles of alcohol, food, money, or items in restaurants, bars, or hotel rooms.
In this case, if the cash register or inventory is inaccurate, the theft and its source must be proven.
Searches of employee lockers and changing rooms are only permitted if the company’s internal regulations organizes it, and only in the employee’s presence and with their consent.
If the establishment’s cash register is accurate, the theft could involve the sale of beverages or a hotel room rental at a higher price than usual.
In all cases, however, the theft and the perpetrator must be proven; otherwise, dismissal will not be justified. For example, in hotels, there is a log of employees entries and exits in hotel rooms, allowing them to know who has entered each room.
- Pimping
This mainly concerns hotels where employees rent rooms by the hour to prostitutes without the manager’s knowledge. Here again, a criminal complaint could be filed by the hotel, restaurant, or catering (HORECA) establishment.
- Breach of regulations, particularly health, hygiene, or safety regulations
For example, if the head chef, who is responsible for monitoring the cold chain, including recording refrigerator temperatures and expiration dates, fails to comply, they are committing a serious offense that could endanger the health of customers.
The HORECA establishment must not allow such a situation to continue, because in addition to the danger to customers, the head chef’s negligence puts the establishment at risk of receiving an administrative closure order, which is obviously detrimental to its revenue.
2- Breaches of Contract by Employee
It is important for a hotel, restaurant, or café (HORECA) to carefully draft the employment contracts offered to its employees, particularly regarding the following points:
- Job Duties:
It is essential to clearly define the nature of the employee’s duties, and specifically to attach a job description to their employment contract.
An employee is at fault for failing to comply with their job description. For example, if the HORECA asks its head chef to develop menus and lists or to hire kitchen staff, and the chef refuses, the chef is at fault for failing to comply with their employment contract.
Conversely, the HORECA cannot dismiss an employee who refuses to perform a task not stipulated in their employment contract, job description, or agreed upon. For example, asking a waiter to clean the rooms.
To protect itself from these situations, the hospital/hotel/café (CHR) may draft an addendum to the employment contract, possibly including additional compensation for these new duties. The employee who signs the addendum will then be required to perform these tasks.
- Regarding working hours
The hospital/hotel/café must inform employees of their working hours.
The hospital/hotel/café must specify these hours in the employment contract or internal regulations, or post them or communicate them by any other means. Some employers even send their employees their working hours in advance by email. Therefore, in case of lateness, the employee may be penalized (except for one or two minor instances of lateness).
Similarly, flexible working hours allow employees to work overtime in one week and make up the extra hours the following week, without having to pay overtime, provided the total working time does not exceed 1607 hours (while respecting the maximum weekly working hours: 48 hours per week or 46 hours over 12 weeks).
Even and especially within this flexible working hours framework, the hotel, restaurant, and catering (HRC) must notify its employees at least 15 days in advance of their scheduled working days and hours. Failure to do so cannot be held responsible for non-compliance with these hours. In the event of a change in hours compared to the scheduled schedule, employees must be informed 8 days in advance, or even two days in exceptional circumstances. Otherwise, no fault can generally be attributed to the employee.
For managers, such as a head chef, they may be subject to a fixed-rate agreement. The HRC cannot, in principle, penalize a manager for not arriving at 9:00 a.m., as their working time is calculated in days (228 days) from the moment they begin performing their duties. This is why it is not necessarily in the HRC’s interest to subject its managers to fixed-rate agreements. Each situation must be examined individually.
- At the workplace
The hotel, restaurant, or catering (HRC) establishment must specify the employee’s place of work in the employment contract or any other written document. If the employee is required to work in several establishments, this must be indicated in the employment contract or in writing (addendum, etc.). Otherwise, the employee cannot be held responsible for misconduct committed in the non-contracted establishment.
Therefore, from the drafting of employment contracts, it is advisable to seek assistance from a lawyer specializing in HRC matters. This lawyer will advise the manager and draft the employment contract in accordance with their social strategy and in compliance with labor law. Indeed, a lawyer specializing in HRC matters is familiar with the types of misconduct that employees may contest during dismissal proceedings and will therefore intervene proactively to avoid financial penalties.