OD FLASH [ The employer’s failure to conclude regular fixed-term employment contracts over a period of 16 years is not sufficiently serious to justify the formal cognizance of the termination of contract.

French Supreme Court, Social Division, March 19, 2025, No. 23-23.029

In this case, an employee was hired under several fixed-term employment contracts over a period of 16 years, between April 2, 2002 and April 3, 2018, the date of termination of the last contract.

The employee requested and obtained the reclassification of his fixed-term contract as a permanent contract, then took formal cognizance of the termination of their employment contract and requested that this cognizance be treated as a dismissal without real and serious cause.

The trial judges sovereignly considered that the taking of cognizance of the employee’s employment contract had the effect of a resignation, and not a dismissal without valid real and serious cause.

The employee lodged an appeal before the French Supreme Court. He challenged the appeal judgment on the grounds that it had ruled in this way, and dismissed his claims for payment of various compensation for dismissal without real and serious cause. The employee argued that assigning an employee with irregular fixed-term seasonal contracts to tasks that were not strictly seasonal and not long-term could be considered a serious breach of contract by the employer, justifying the termination of the employment contract at his sole fault. By ruling, after reclassifying the contractual relationship as a permanent employment contract, that the employee’s formal cognizance of termination had the effects of a resignation on the grounds that the conclusion of irregular fixed-term contracts was not sufficiently serious—given that the employee had continued for over sixteen years without raising any objections—the employee considers that the Court of Appeal violated Articles L. 1234-1, L. 1234-9, L. 1235-1, and L. 1235-3 of the Labor Code.

But the French Supreme court does not agree. It considers that, while the breach relating to the conclusion of irregular employment contracts was established, this breach is not sufficiently serious to prevent the continuation of the employment contract.

Therefore, the employee’s legal cognizance of the breach of the employment contract cannot produce the effects of a dismissal without real and serious cause.

Indeed, any breach by the employer does not justify the employee’s “self-dismissal”. The breach of contract alleged against the employer must also be sufficiently serious (Cass. soc., Sept. 27, 2006, no. 04-46.786).

As usual, the French Supreme court here defers to the sovereign power of assessment of the trial judges to characterize the seriousness of the employer’s alleged breaches. Although the casuistry seems insurmountable, it should nevertheless be recalled that in this matter, the benefit of the doubt lies with the employer and it is up to the employee to provide proof of the reality and seriousness of the grievances he or she holds against his or her employer (Cass. soc., Nov. 28, 2006, No. 05-43. 901; Cass. soc., May 30, 2007, no. 05-44.685).