Although he was supposed to be dismissed for incapacity, this employee ultimately received his salary for 9 years. He was eventually fired.
The story is so absurd that it seems unreal. Xavier Berjot, labor law lawyer at the Paris Bar, tells JDN exclusively the story of a client he recently supported. This employee worked in the social protection sector in a large national mutual insurance company with several hundred employees. Hired in 2011, he was promoted in January 2013 as an executive in charge of studies.
Less than a year after his promotion, he was declared unfit by occupational medicine. “When an employee is declared unfit by the occupational physician, the employer has a period of one month to either reclassify him or dismiss him (article L. 1226-4 of the Labor Code). After this period, he must resume payment of the salary until the situation is regularized – effective reclassification or notification of dismissal. This obligation to resume the salary is automatic and is imposed even if the occupational physician has indicated that no reclassification was not possible”, explains the lawyer.
Here, the notice of incapacity is pronounced and time passes. 1 week, 2 weeks, 3 weeks and still no news for the employee. After a month, the employer resumes paying him his salary in accordance with the law. As long as he is not reclassified or dismissed, the employee must be paid, even if he no longer works, which was the case here. And the situation will last much longer than expected. Months…then years!
The employee decides to set up a self-employed business in training and continues to receive his salary at the same time. It was not until 2022 that he was finally fired. “At no time, during these 9 years, did he alert his employer to the incongruity of his situation. Nor did he ask to be reclassified, nor to be dismissed. It was the arrival of a new human resources department, in 2022, which led to the discovery of the file. The company then immediately initiated a reclassification procedure, then – in the absence of a position compatible with the employee’s wishes – a dismissal procedure for incapacity”, describes Xavier Berjot.
Dismissed 9 years later, the employee seized the industrial tribunal to contest the validity of his eviction. “He maintained that the notice of incapacity drawn up in December 2013 had become obsolete almost 9 years later and that it could no longer serve as a valid basis for dismissal. According to him, a new follow-up visit was necessary. On the other hand, he maintained that his incapacity found its true cause in prior breaches by the employer of its safety obligation, regarding an alleged deterioration of his working conditions during the year 2013”, explains the lawyer.
However, the judges rejected his request considering that the dismissal was justified. They noted that the salary had been paid and that the breaches mentioned by the employee were prescribed within 2 years. In addition, his failure to report his situation for 9 years weakened his credibility. Following this judgment, the employee did not wish to appeal.
“The employee’s gross monthly salary was around €3,200. Over 104 months, or almost 9 years, the company paid him a total of around €336,000, without any work compensation,” concludes Xavier Berjot. A serious error to be attributed to the various human resources directors who succeeded one another between 2013 and 2022. A real team effort.
