Abusive Dismissal of Delegated Managing Director in SAS

Extract

[...] Court of Cassation, Commercial Chamber July 2012, n° 11-19.563 Does the dismissal of a delegated managing director constitute an abusive dismissal likely to engage the company's liability for the damage suffered? - Case summary Com July 2012, n° 11-19.563, RJDA 12/12, n° 1076 - SAS Delegated Managing Director - Abusive Dismissal Facts : The delegated managing director of a SAS, was dismissed from his position at an ordinary general meeting on July He claims that this dismissal was decided in injurious and vexatious conditions, particularly because he had not been summoned to present his defense. [...]

[...] Solution : The Court of Cassation responds negatively to the question posed. It considers that, in this case, the delegated general manager who was dismissed had clearly expressed, by email, his divergences and criticisms towards the company, as well as his will to impose his point of view in order to continue exercising his functions. The Court notes that he had made known, in an explicit manner, his conditions for continuing to occupy his functions, which led the appeals court to estimate that the company did not have the obligation to open a prior discussion before deciding on the dismissal. [...]

[...] The question of respect for the principle of contradiction in capital companies - The ruling also clarifies that the principle of contradiction, although it is a a general rule of law, can be adapted in SAS if it is provided by the statutes or if the circumstances, as in this case, justify revocation without the need for prior discussion. This may lead companies to reconsider how they draft their statutes and think about the consequences of more flexible management but potentially more risky in terms of relations with their social managers. Class Notes Here, there is an OVERLY lenient assessment of the principle of contradictoriness, the Court is too lax compared to other decisions seen. ? For the SA, it's more strict. [...]

[...] In the absence of binding statutory provisions, the SAS has great freedom in decision-making, which is confirmed by the rejection of Mr. X.'s request . who felt that his dismissal should have been preceded by an adversarial procedure. The relationship of trust between the governing bodies and the social representative - The case of Mr. X whose dismissal is linked to divergent views expressed unilaterally, shows that a breach of this relationship of trust can justify a dismissal, without the need to respect a prior adversarial procedure, if the company's statutes do not require it. [...]