In a dismissal procedure, should the offending employee be summoned and heard on the same day, or should he be given a period of time to prepare his defence? This question makes legal counsel dizzy. And to fix the situation, do not count on the Court of Cassation. His social chamber has just signed a new reversal of its own case law.
Delivered in April, the judgment in question proposes an interpretation of article 62 of the Labor Code. This text governs the procedure for dismissal by disciplinary measure. It offers the employee the right to “defend themselves and be heard by the employer (…) within a period not exceeding eight days from the date of observation of the act attributed to them”.
This article sets “a period of eight days for the hearing of the employee, a period which runs from the finding of the imputed fault. But there is no delay between the date of the employee’s summons and that of his hearing. There is nothing to prevent this tapping from occurring on the same day as the summons”, decides the judgment of which Médias24 holds a copy. The sages nevertheless make an exception: the employer is obliged to grant a postponement if the employee expressly requests it, and this, so that the latter can prepare his defense.
This stop comes reverse a case law dated 2016. “The Court of Cassation had introduced the obligation to grant a reasonable period to the employee when the Labor Code speaks of the right to defence. It therefore arbitrarily created a 24-hour period between the summons and the listening session, a period which does not exist in the law”, comments hotly. Me Youssef Fassi Fihrilawyer at the Casablanca Bar.
However, the new judgment “plunges us back into the past. This is a new interpretation that brings us back to the spirit in which these files were judged between the advent of the Labor Code in 2004 and until 2016. That is to say that there is no reason to grant a delay between the date of the summons and that of the listening session, which can take place on the same day as long as the employee does not claim the postponement of the hearing”, explains this specialist.
Advising employers, mission impossible
“In itself, the decision is correct in my opinion. Nothing in the law obliges to grant a delay. The real subject is the inconsistency of the same jurisdiction on the same point of law”, observes Me Mounir Founani, lawyer at the bar of Rabat. “How do you advise a company on this subject? This discredits the lawyer, puts him at odds with the client and compromises the rights of employers,” adds our interlocutor.
For Me Founani, “there is no jurisprudential stability within the social chamber. It is the synonym of judicial insecurity. That is to say that it is impossible to predict the outcome of a case”.
Me Fassi Fihri shares this discomfort. “Today, we have a feeling of total legal insecurity. Which is very serious, especially coming from the highest court in the Kingdom. »
“We are no longer able to give the right advice to our customers. As soon as you tell them that, tomorrow, you can listen to your employee on the same day as the receipt of the summons, new case law may arise to impose a minimum period of 24 hours. With the risk that the client will be condemned for non-compliance with the procedure, ”adds the lawyer. “Personally, I will continue to advise employers to keep the 24-hour deadline. This will allow them to better prepare the points they wish to address during the interview with the employee”, he confides to us.
The instability of the Court of Cassation is only one symptom. “The text of the law is itself vague. We try to interpret it but every four years, we release a different interpretation from the previous one », continues Me Fassi Fihri. The debate is legislative. “It is urgent that the Labor Code be amended, or that there be at least an order from the Ministry of Employment on the application and explanation of Article 62.”
“The employer has the heavy task of respecting the formal procedure. He must therefore have a checklist of eight or nine points, or even a framework or models to follow to unify the way of managing the procedure prior to dismissal, ”concludes our lawyer.