The French Court of Cassation, the highest court in matters of law, annulled the decision that had considered valid the dismissal for “serious misconduct” of a pharmacy technician due to lack of a diploma, in a case that began with the hiring in 1998 and ended up dragging on for years through the courts.
In the understanding of the Cour de cassation, cited by the Spanish portal Noticias Trabajo, when an employer maintains an employment relationship for years in a regulated profession without verifying the required qualifications, it cannot then rely on that same irregularity, which it also gave rise to, to sustain a “serious misconduct” attributed exclusively to the worker.
A case that dates back to 1998 and only “exploded” at the end of 2017
The worker was hired in 1998 to work as a pharmacy technician/preparator. Over the years, the pharmacy changed hands, and the contractual relationship was maintained with new managers from 2015 onwards, through an amendment to the contract.
It was at the end of 2017 that the situation became a problem: in a random check by the regional health authority (ARS), the employee’s diploma was requested, and the employee’s document was not found or presented. Contacts and formal requests followed for a copy to be delivered, with the employee already on medical leave.
Dismissal in 2018 and contradictory court decisions
Without a sufficient response, the pharmacy proceeded with disciplinary dismissal, citing “serious misconduct” and pointing out an alleged breach of the duty of good faith/loyalty, also highlighting the legal risk associated with carrying out regulated functions without the required qualification.
In 2021, the first labor instance ruled in favor of the worker: it considered the dismissal unjustified and awarded compensation of more than 34,800 euros. The pharmacy appealed and, in 2023, the Court of Appeal changed its understanding and fully reversed the decision, validating the dismissal for “serious misconduct”.
What the Court of Cassation has now decided
The Cour de cassation annulled the 2023 ruling and ordered the case to be re-examined by another court of appeal. Furthermore, he ordered the employer to pay costs and pay 3,000 euros in procedural expenses.
According to , the central point is clear: the employer cannot “benefit” from the lack of verification of qualifications to transform the situation into a serious misconduct attributable, without more, to the worker. Even so, the case is not closed, the final amount of possible compensation will depend on the new decision on appeal.
What if it were in Portugal?
In Portugal, the framework would be different, but with one common point: pharmacies operate under strict rules. Technical direction must be provided, permanently, by a technical director pharmacist registered with INFARMED, and pharmacists can be assisted by pharmacy technicians and other duly qualified personnel.
Regarding the employment relationship, a disciplinary dismissal would, as a rule, require proof of culpable behavior on the part of the employee that was serious enough to make it impossible to maintain the employment relationship. In a situation where the employer itself has failed to verify documents for years, the risk of litigation increases, and the concrete assessment would always depend on what was possible to prove (for example, whether there was fraud, concealment, or false statements during hiring).
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