A recent case of the Court of Appeal (23 April 2015, n° 40393) recalls the principle applicable to the means of proof in labour law.

The Court rejected the arguments of the employer and declared the dismissal to be abusive as the employer provided a testimony to prove the established practice within the company without providing proof of this practice in any written document. 

In this case, the sales employee was dismissed because he called the company at around 9 am rather than 8 am to inform the employer of his itinerary and did not call his employer during lunchtime or at the end of the day to report on the day’s events.

The employer justified the dismissal on the basis of an established practice within the company that obliges each salesman to call three times a day at specific hours to inform the employer of the day's activities.

Moreover, the employer refused to reimburse the employee's petrol expenses, again citing an established practice within the company whereby the employee bears the cost of such expenses if the employee benefits from a company car.

It is relevant to indicate that these established practices agreed between the employer and his employee are not provisions included in the employment contract or in another written document e.g. an internal regulation.

Unlike legal facts which can be proven by any means, article 1341 of the Luxembourg Civil Code states that a legal act whose value exceeds EUR 2,500 can only be proven in writing.

The employment contract is a civil contract and as the Labour Code does not include specific provisions regarding the possible means of proof for the employer, the latter can only prove an agreement with the employee (e.g. an employment relationship, and the modalities and content of such relationship) by providing written evidence, namely an employment contract or an internal regulation.

Nonetheless, according to article L.121-4 (5) of the Labour Code, the employee can prove an agreement between the parties by any means, e.g. a testimony.

As the employer in this case used a testimony to prove the established practice within the company without providing any written evidence, the Court declared the dismissal abusive.

As a consequence, we recommend the company signing an employment contract to make sure that all provisions considered essential for the company are included in the employment contract or in a written document signed and duly approved by the employee in order to provide proof in case of dispute.