This employee’s dispute provides an important legal reminder of the distinction between disciplinary breach and professional inadequacy.
Reporting your manager’s behavior will not necessarily get him fired. This affair with multiple twists and turns proves it. The protagonist, in post for 4 years at the time of the events, is director of a home help structure in the south of France. Hired in 2017 by signing a permanent contract, he was quickly directed to training financed by his employer to the tune of nearly 20,000 euros.
A significant investment and… not very profitable since he fails and does not complete the training. The employer grits his teeth but is not at the end of his surprises. On February 19, 2021, the employee creates an association competing with his employer and domiciles it… at the headquarters of his workplace.
At the same time, the employee’s health deteriorates to the point that he attempts to end his life. He was placed on sick leave from April 2021 until August, when his situation worsened. He is summoned to an interview prior to a sanction which could go as far as dismissal on August 9, 2021. The interview is scheduled for August 23 but against all expectations, the employee does not show up. The employer then brings together a board of directors to discuss a sanction but some of the directors oppose it and propose mediation.
It is at this moment that two colleagues intervene. On August 30, they sent letters to management in which they denounced the director’s failings. And the list is long: lack of planning, delays, psychological pressures, lack of collaboration. In short, deplorable working conditions. Elements which add grist to the employer’s mill when pronouncing the dismissal of the employee, on September 16, 2021. The reason given is professional insufficiency.
The dismissal letter contains a criticism in particular: “Your personal occupations seriously encroach on your work: abuse of cigarette break time, watching the Tour de France or other sporting event during your working time […]”. Charges which will then be examined by the courts.
“These details are always highlighted in court, they can help influence whether doubt arises but before the judges, intransigence prevails. But on this type of fact, we expect at least that the witnesses can attest that the facts occurred on a specific date,” explains Jean Duffour, labor law lawyer. The employee refers the matter to the Aubenas industrial tribunal.
On April 24, 2024, the industrial tribunal judged the dismissal without real and serious cause and awarded €7,433.64 in damages to the employee. A decision against which the employer is appealing. On January 27, 2026, the Nîmes Court of Appeal confirmed the judgment in full and awarded an additional €2,000 to the employee.
Why so much indulgence? Because in four years in this position, the director has never had the slightest annual interview, nor the slightest evaluation, positive or negative. A silence that justice sanctions. For her, an employee can only be dismissed for professional inadequacy if his employer has first given him a real chance to correct himself. “It actually starts with negative evaluations which serve as a constructive warning. Otherwise, it’s an empty file. How can we consider dismissing someone by saying ‘you suck’ if nothing confirms it and the previous evaluation indicates ‘great results, continue’?” adds Jean Duffour.
After his dismissal, the employee quickly found work. This is a factor which is important in the calculation of sums by the courts. “Compensation for the damage is assessed at the time of judgment. If the employee has found work quickly, we consider that the compensation is less important than if he is still looking for work, the duration of unemployment is one indicator among others to determine the extent of the damage resulting from an unjustified dismissal”, concludes the lawyer. This case reminds us of a simple, but often forgotten, rule: an employer cannot blame an employee for years of failings that he never took the trouble to report.
