Judicial Rescission and Dismissal: Employer Cannot Ignore Its Persistent Breaches

Imagine: you have worked for years in a company in Saint-Vincent-de-Tyrosse, when suddenly your employer stops giving you assignments, isolates you, and no longer pays you certain bonuses. You eventually ask the court to order the judicial rescission of your employment contract, i.e., to terminate your employment due to the employer's fault. But before the judge rules, your employer dismisses you. What happens then? Does the claim for rescission become moot? The answer is no, and that is what the Court of Cassation reminded in a judgment of 14 December 2011 (No. 10-13.542). This decision, which may seem technical, has concrete implications for any employee facing a deterioration of their working conditions. It allows all of the employer's breaches, even those that persisted after the court was seized, to be taken into account to assess the seriousness of the situation. In short, the employee does not have to choose between seeking rescission and challenging their dismissal: the two avenues are complementary, and the judge can sort it out.

The Facts: A Story That Happens Every Day

Mr. X, a sales executive in a company based in Mimizan, has been in conflict with his employer for several months. He complains of gradual isolation: no more assignments, no clear line management, and even no invitation to important meetings, such as that of 19 January 2006 where all executives were present except him. He believes that his employer is failing to fulfil its contractual obligations by not providing him with work and by depriving him of his variable remuneration.

On 10 March 2006, Mr. X brought a claim before the employment tribunal for judicial rescission of his employment contract due to the employer's fault. He relies on the breaches described above. However, the employer retaliates by dismissing him for economic reasons on 15 April 2006, i.e., after the proceedings were initiated. Mr. X then challenges this dismissal before the same court.

The Court of Appeal, seized of the dispute, examines the claim for judicial rescission and the dismissal. It decides that the employer's breaches, although prior to the claim, persisted until the date of dismissal, which demonstrates sufficient seriousness to order judicial rescission. It orders the employer to pay damages for dismissal without genuine and serious cause. The employer appeals to the Court of Cassation, arguing that the judge could not take into account facts after the claim for rescission to assess their seriousness. The Court of Cassation dismisses the appeal and upholds the Court of Appeal's judgment.

The Reasoning of the Court — Analysed

The judges' reasoning is based on a simple but fundamental principle: the claim for judicial rescission and the challenge to the dismissal are two separate actions that can coexist. When an employee seeks judicial rescission, they rely on breaches by the employer which, if sufficiently serious, justify termination due to the employer's fault. But if the employer dismisses the employee during the proceedings, the judge must examine both claims: first, the judicial rescission (which supersedes the dismissal if granted), and then, as a subsidiary matter, the validity of the dismissal.

In this case, the Court of Cassation validates the reasoning of the Court of Appeal: to assess the seriousness of the employer's breaches, the judge may take into account their persistence up to the date of dismissal. In other words, even if the facts occurred before the claim, their continuation over time aggravates the situation. This solution is based on Article 1224 of the Civil Code (formerly 1184), which allows a party to seek judicial rescission of a contract in the event of sufficiently serious non-performance. The judges consider that the persistence of the breaches is a factor in assessing their seriousness, as it shows that the employer did not remedy its faults.

What few people know is that this decision endorses a pragmatic approach: the employee is not required to choose between the two avenues. They can combine the claims, and the judge will sort things out. However, be careful: this does not mean that judicial rescission is automatic. It is necessary to demonstrate serious and persistent breaches, not mere disagreements.

What This Changes for You — Practically

For employees, this decision is an additional weapon. If you suffer breaches by your employer (non-payment of salary, harassment, unilateral modification of the contract, isolation, etc.), you can bring a claim for judicial rescission before the employment tribunal. Even if your employer subsequently dismisses you, your chances of obtaining rescission remain intact, provided that the breaches persisted.

Concrete example: an employee of a company in Saint-Vincent-de-Tyrosse sees their salary unjustifiably reduced for six months. They seek judicial rescission. The employer, to protect itself, dismisses them for professional incompetence. Thanks to this case law, the judge can take into account the persistent salary reduction (even after the claim) to find that the employer has seriously breached its obligations, and therefore order judicial rescission, which is equivalent to a dismissal without genuine and serious cause, giving rise to damages (for example, 6 to 12 months' salary depending on seniority).

For employers, the lesson is clear: do not think that a swift dismissal erases your past mistakes. If your breaches are serious and persist until the dismissal, you risk heavy awards. undefined, I have come across cases where the employer, after receiving a claim for rescission, dismissed the employee to try to steal a march on the judge. This decision closes that door.

Four Tips to Avoid This Type of Dispute

• Keep all evidence of breaches: emails, pay slips, witness statements. If you are an employee, keep a written record of each anomaly (late payment, failure to respond to your requests).
• Do not delay in acting: as soon as the breaches become repeated or serious, bring a claim before the employment tribunal. Time works in your favour if the facts persist.
• If you are an employer, rectify quickly: if an employee complains, do not ignore them. Correct the situation before proceedings are initiated, because afterwards it will be too late.
• Consult a lawyer before taking action: a professional will assess the strength of your case and advise you on strategy (judicial rescission or challenge to dismissal).

Further Reading: Related Case Law and Developments

This decision is part of a line of case law favourable to employees. The Court of Cassation had already held, in a judgment of 16 February 1999 (No. 96-45.942), that a claim for judicial rescission was not inadmissible due to a subsequent dismissal. The 2011 judgment goes further by specifying that the persistence of breaches may be taken into account. Since then, lower courts regularly apply this principle. For example, a judgment of the Court of Appeal of Pau (jurisdiction of Mont-de-Marsan) recently ordered the judicial rescission of an employment contract of an employee of a company in Mimizan, finding that the employer had ceased to provide work for several months, even after the claim was brought. The trend is therefore clear: judges do not hesitate to sanction employers who persist in their breaches.

What You Absolutely Must Remember

FAQ:

• Can I seek judicial rescission after being dismissed? Yes, if you requested it before the dismissal, or even after, provided that the breaches existed before the dismissal. But it is better to act beforehand.
• What are serious breaches? Non-payment of salary, harassment, unilateral modification of the contract, failure to provide work. Each case is assessed by the judge.
• What is the time limit to act? The claim for judicial rescission is not subject to a specific time limit, but you must act within a reasonable time (a few months to a year after the first breaches). To challenge a dismissal, you have 12 months from notification.
• What amounts can I obtain? If rescission is granted, it produces the effects of a dismissal without genuine and serious cause: notice pay, redundancy payment, and damages (between 1 and 20 months' salary depending on seniority and company size).
• What if my employer dismisses me during the proceedings? Do not be discouraged. Inform your lawyer so that they can adapt the strategy. The judge will examine both claims.

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