By an opinion delivered on July 8th, 2021, the Court of Cassation ruled on the date of application of article L. 1231-5 of the French labor code which provides for the repatriation of the employee by a parent company when he was dismissed. by the subsidiary.
Indeed, the Court of Cassation is responding to a request for an opinion made on May 27th, 2021 by the Paris Court of Appeal in a proceeding opposing an employee to his employer.
1) Request for advice
It was also a question of answering the following question:
"Following his dismissal by the foreign subsidiary, is the employee justified in requesting the application of Article L. 1231-5 of the Labor Code with a view to his reinstatement?
In other words, on what date should it be determined whether the conditions for the application of Article L. 1231-5 of the Labor Code are met (date of the employee's secondment abroad or date of the cessation of the secondment of the employee abroad (ie, date of the dismissal of the employee by the foreign company)? "
2) Examination of the request for an opinion
First of all, the Court of Cassation recalled that the cited article L1231-5 specifically states that “When an employee hired by a parent company has been made available to a foreign subsidiary and that an employment contract was concluded with the latter, the parent company ensures his repatriation in the event of dismissal by the subsidiary and provides him with a new job compatible with the importance of his previous functions within it.
If the parent company nevertheless intends to dismiss this employee, the provisions of this title shall apply.
The time spent by the employee in the service of the subsidiary is then taken into account for the calculation of the notice period and the severance pay. "
Then, the Court of Cassation based itself on the parliamentary work of the law of July 13, 1973 which sheds light on terms such as “parent company” and “subsidiary” to interpret article L1231-5 of the labor code “as subordinate the repatriation and reintegration guarantees for which the company providing the employee is responsible for the control that the latter exercises over the host company, author of the dismissal ”.
In addition, the Court of Cassation also based its opinion on a judgment published on November 13, 2008 issued by the social chamber (n ° 06-42583) which considered "that it is up to the parent company to take the initiative of repatriation of the employee and to offer him reclassification as soon as the employee's employment contract with the subsidiary company is terminated ”.
3) Opinion delivered by the Court of Cassation
Consequently, the Court of Cassation considered that “the parent company which has made an employee available to a foreign subsidiary is bound by the obligations provided for in article L.1231-5 of the labor code insofar as, the date of dismissal of this employee, it controls the latter company ”.
In other words, the employee is entitled to request the application of article L1231-5 of the labor code with a view to his reinstatement, following his dismissal by the foreign subsidiary, as soon as on the date of dismissal, the parent company controls the subsidiary.
Thus, in response to the request for an opinion, the conditions of application of article L1231-5 of the labor code are met on the date of the employee's dismissal by the foreign company and not on the date of the secondment. of the employee abroad.
Frédéric CHHUM, Avocat à la Cour et Membre du Conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Sarah BOUSCHBACHER juriste
CHHUM AVOCATS (Paris, Nantes, Lille)
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