Reinstatement: employer can recover notice indemnity already paid

Severance pay, notice, and other termination indemnities
Reinstatement: the employer may recover the notice indemnity already paid
Court of Cassation, Labour Division

A company had dismissed a worker and paid him the indemnity in lieu of notice. The dismissal was subsequently declared unlawful, with reinstatement and recognition of a compensatory indemnity. In the enforcement proceedings, the employer deducted the amount already paid in respect of notice. The worker contested the set-off and succeeded both at first instance and on appeal.
The Court of Cassation, however, clarified that the indemnity in lieu of notice presupposes the termination of the employment relationship and is incompatible with reinstatement, which reconstitutes the relationship as a matter of law. When reinstatement becomes definitive, the sums already paid on that basis are no longer due and a right of recovery arises in favour of the employer.
That right of recovery arises after the formation of the judicial title ordering reinstatement. It may therefore be asserted in enforcement proceedings and set off against the sums claimed by the worker, without being precluded by the force of res judicata.
In practical terms, the employer may recover the notice indemnity already paid when the dismissal is set aside with reinstatement, provided that the right of recovery arose after the enforcement title was established.