The Supreme Court has held that a breach of a mobility clause in an employment contract justifies a dismissal for serious misconduct.
In the case at hand, an employee twice refused the application of a mobility clause in his contract, considering that his departure from the first company, where he had
been working for six years, constituted a disguised penalty for his having been on sick leave. He was dismissed for serious misconduct based on unjustified absences further to his refusal to accept his new assignments. The refusal of his first new assignment was based on the change in his work schedule, but upon receiving a letter convening him to a preliminary meeting prior to a possible dismissal, the employee bowed to his employer’s order to return to work.
The refusal of his second assignment was based on the fact that it would involve standing for twelve hours.
The Supreme Court affirms that the employee’s refusal to take up the two new assignments was in breach of the mobility clause and that the notice convening him to a preliminary meeting was the reason for his return to work. It confirms that such a refusal, without any legitimate justification, characterizes serious misconduct making it impossible to continue the employment contract.
It should be noted that while a refusal, by an employee with a mobility clause in his contract, of a change in workplace clearly constitutes a breach of his contractual obligations, it does not as such characterize serious misconduct (Sup. Ct., Lab., 23 Jan. 2008, no. 07-40.522). Any such characterization must be based upon the factual circumstances surrounding the refusal.