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COVID-19 and HR Risk Management | Dismissals

01/04/2020

Proper balance is what makes Article 6 of Act No 729 so special in the Principality of Monaco

Governmental clarifications on dismissals in the context of the COVID-19 pandemic

At a press conference given on 31 March 2020, the Prince’s Government specified a number of measures affecting workers, including employees and employers.

In addition to the measures already announced and in force, such as the strengthened provisions for total temporary layoff (chômage total temporaire renforcé - CTTR) and distance working, which is expressly made compulsory unless it is sufficiently justified, the Government has intended to make the situation of employees more secure, in particular by providing for new financial support measures:

  • advances on early paid leave for temporary employment agencies;
  • exemption from social security contributions on COVID-19 bonuses;
  • full salary maintenance in the event of CTTR;

and above all:

  • by prohibiting any dismissal during this period, except in the event of proven serious misconduct.

In this context, under what conditions can dismissals be implemented?

It’s all about context

This prohibition confirms the importance and the impact that the general context existing on the day of the decision to dismiss, and more particularly when this decision is made under Article 6 of Act No 729, can have.

By further regulating the use of this prohibition during this exceptional period, the Government recalls the specificity of Article 6 of Act No 729. Following the example of the conditions for the strict supervision of its use which case law had already laid down, it is in fact recalled that abusive and excessive use in this case of breach of contract at the initiative of the employer is reprehensible and could in the long term undermine its use.

Therefore, in order to ensure that the legitimate right to terminate the employment contract without stating a reason, a specific feature of Monegasque law, remains, particular vigilance must be paid to the context surrounding the termination of the contract, such as, beyond the current exceptional circumstances:

  • illness;
  • the return to work after a sick leave;
  • a pre-existing conflict;
  • complaints by the employee regarding his working conditions;
  • the existence of other previous or concomitant dismissals, etc.

Moreover, it is a matter of maintaining a balance between the law and abuse of rights, which presupposes a concrete examination of the situation as soon as a dismissal is envisaged, whether under Article 6 of Act No 729 but also more broadly for any dismissal for cause.

This equilibrium of balances and interests is all the more understandable in the current exceptional period, given the efforts made by the Government to preserve activities and employment, in particular through the payment of compensation under the CTTR.

All of the above-mentioned measures should be the subject of official texts to be published shortly.

Authors

The picture of Sophie Marquet
Sophie Marquet
Avocat Associé | Partner
Monaco
The Picture of Sophia Bernardi
Sophia Bernardi
Middle Associate
Monaco