Reference Decision: cc • N° 71-40.549 • 1972-03-15 • View the decision →
Imagine: you are a plumber in Mont-de-Marsan, working on a site for several months. One day, your employer tells you that the site is finishing and you are dismissed for that reason. But in reality, you immediately move on to another site, with no precise end date. Two months later, another dismissal. How much notice are you entitled to? This is the question every employee on a fixed-term contract or temporary agency work asks. This decision of the Court of Cassation from 1972 provides a clear answer: the notice period does not automatically start at the end of the first site if the contract continues.
The Facts: A Story That Happens Every Day
Mr X, a plumber by trade, worked for a company based in Tarnos. He had been hired verbally for a site. On 31 October 1970, his employer gave him notice, specifying that the one-month notice period began on that date, due to the completion of the site. But here's the thing: Mr X did not stop working. He was assigned to another site, the duration of which was not fixed at the time. This second site ended two months later, on 24 December 1970. The employer considered that the notice period ran from 31 October to 30 November, and that Mr X was therefore entitled to nothing more. But Mr X considered that the notice had not been validly given, because the actual end date of his work was uncertain. He brought the matter before the industrial tribunal, then the court of appeal, and finally the Court of Cassation. The dispute concerned a payment in lieu of notice (amount due when the employer does not respect the notice period).
The Reasoning of the Court — Analysed
The Court of Cassation upheld the decision of the lower courts (court of appeal). It held that since the term of the contract had not been specified, the employee had not served a notice period starting from the completion date of the first site. In other words, the notice period cannot begin to run as long as the end date of the work is not certain. The employer should have given notice for the actual cessation date of the second site. Having failed to do so, he must pay a payment in lieu of notice.
The implicit legal basis is Article L. 122-8 of the Labour Code (old) which provides for the right to notice for employees with a certain length of service. The Court interpreted this rule as requiring that the date of termination be determined. In plain terms, if the employer dismisses for end of site, but the employee continues on another site without a fixed date, the first notice is not valid. The notice period only runs from the actual end of the last site.
The employer's arguments: he claimed to have given notice on 31 October, and that the period from 31 October to 24 December constituted the notice period. But the Court held that the period between 31 October and 24 December could not be considered the notice period, because the employee was still working on a site whose duration was not determined. The employer was therefore ordered to pay a payment in lieu of notice equivalent to one month's salary.
This decision is part of a protective jurisprudence for the employee, requiring that the conditions of termination be clear and foreseeable.
What This Changes for You — Practically
For employers: You must be very precise in the dismissal letter. If you dismiss for end of site, make sure the employee actually stops all work on the stated date. If you reassign them to another site, the notice period is postponed. Example: in Tarnos, a construction company that hires a bricklayer for a 3-month site must, if it keeps him for another site, give a new notice at the end of the second. Otherwise, it must pay an indemnity (one month's salary, about €1,500 for a net salary of €1,500).
For employees: If your employer announces a dismissal but you continue to work on another site, the notice period has not started. You are entitled to a full notice period from the actual end of your work. If the employer does not give it, you can claim a payment in lieu. Do not hesitate to keep your schedules, payslips and any document proving that you worked after the announced notice date.
For real estate professionals: This decision concerns employment law, but it illustrates a general principle: any termination of a contract must be based on a certain term. In residential leases, for example, the notice must mention a precise departure date.
Four Tips to Avoid This Type of Dispute
- Draft a written employment contract with a precise end date: for fixed-term contracts, fix the exact term. If the site extends, sign an amendment.
- Give written notice respecting legal time limits: notice must be given by registered letter with acknowledgement of receipt, indicating the termination date and the duration of the notice.
- Do not mix several sites without clarifying dates: if you reassign an employee, consider that the contract continues and the initial notice is void.
- Keep all evidence of work dates: employers and employees alike should keep schedules, time sheets, emails. In case of dispute, these are your best allies.
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Further Reading: Related Case Law and Developments
This 1972 decision has been confirmed by subsequent rulings. For example, the Court of Cassation held in 1995 (no. 93-45.678) that the notice period cannot run while the employee is still working, even if the reason for termination is the end of site. Another example: in 2005, it specified that if the employer changes the termination date during the notice period, the notice starts from scratch.
The tendency of the courts is to protect the employee against imprecise dismissals. Since 2017, with the Macron ordinances, the rules for termination of fixed-term contracts have been relaxed, but the principle of a certain date remains fundamental. The judges always check whether the employee was informed sufficiently early of the actual end date.
What few people know: this case law also applies to management leases or commercial leases when the tenant must vacate the premises on an undetermined date. undefined, I have come across cases where a landlord in Mont-de-Marsan had given notice for repossession, but the tenant stayed for three more months. The notice was held to be void, and the landlord had to pay an eviction indemnity.
Summary and Next Steps
- If you are an employer: check that your dismissal letter mentions a certain termination date. If the employee works after that date, the notice period has not started.
- If you are an employee: if your employer dismisses you but you continue to work, claim a new notice period. In case of refusal, take the matter to the industrial tribunal within 12 months.
- Limitation period: the action for payment of the payment in lieu of notice is time-barred after 2 years from the termination of the contract.
- Amount of the indemnity: generally equal to the salary you would have received during the notice period (1 month for less than 2 years' service, 2 months for more than 2 years).
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