The employee won on several counts, but not on her dismissal, which was not even considered by the court. The fault lies in a procedural error.
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If losing in front of the judges is always frustrating, a very specific reason makes the situation even worse, as this employee, who has seen several of her requests irresponsibly rejected by the Aix-en-Provence Court of Appeal, can see: she will never know whether she was right or wrong because her requests were ruled inadmissible. To avoid facing the same situation one day, take a look back at this particular controversy with analysis from Marlene Elmassian, an employment lawyer.
Let’s rewind. In 2018, the unfortunate employee held the position of cashier in the south of France, first on a fixed-term contract, then on a permanent one. It was in 2019 that events began to unfold. First, on November 8, when an employee made offensive gestures towards her manager in the presence of store customers. A few days later there was a quarrel with the client. According to the employer, the employee brutally assaulted her, forcing a security guard to intervene twice.
Therefore, she is called in for an interview before her dismissal on November 14th. Even before this exchange took place, she had approached the Employment Tribunal with several demands, including overtime pay, cancellation of notice and damages. His record makes no mention of his possible dismissal. A few days later, an interview took place and the employee learned that she had been fired for serious misconduct on December 2, 2019.
Having already applied to the employment tribunal, the employee is awaiting the judges’ decision, believing that her dismissal will be considered along with her other demands. The decision was made on September 27, 2021, when her requests were completely rejected. She immediately files an appeal. On May 7, 2022, the Court of Appeal of Aix-en-Provence issued a decision and awarded him almost 1,000 euros in overtime pay. A victory that masks a heavy defeat due to his dismissal.
In fact, the judges didn’t even study the issue! Let us recall that in her arrest, the employee demanded the cancellation of the warning, overtime pay and compensation for damages. She was subsequently fired, but the matter was never appealed by the judges. “This decision highlights a major procedural pitfall for employees. If you first go to an employment tribunal about an issue with your contract and then want to challenge your dismissal, be careful. The court now requires you to file a completely new formal request. Without being patient, the employee had to be careful or go to the labor tribunal twice,” emphasizes Marlene Elmassian.
If you had waited a few days, this procedural problem would not exist. “Then she could group the demands formulated by her for the execution of the employment contract (for example, to cancel the warning and reminder of overtime work for August 2019) and her demands for termination of the employment contract. And all this in the same statement,” the lawyer clarifies.
There is nothing specifically that would indicate that the employee’s dismissal would be reversed or reclassified by the court. The acts of violence of which he is accused fit the employer’s version of events. The judges could have put forward another version. However, she will never know because of this mistake when filing the case in court. The application deadline has already passed, but the regrets will not go away.