Newsletter No. 88 – April 2016

For the Supreme Court, “late payment of the salary is likely to constitute harassment”. The Supreme Court also states, in this decision, that the judges ruling on the merits must not assess each item put forward by the employee separately, but “decide whether, taken as a whole, the items led to presume the existence of moral harassment, and if yes, […] assess the evidence provided by the employer to prove that the measures were not related to any moral harassment” (Supreme Court, Lab. Section, 7 April 2016, n°14-28.250).

Cancelling constant case-law pursuant to which the absence of delivery or late delivery of work certificates and payslips necessarily causes prejudice to the employee, the Supreme Court now rules that “the existence of a prejudice and the assessment of the same is assessed by the judges ruling on the merits”. It is incumbent upon the employee to justify the alleged prejudice (Supreme Court, Lab. Section, 13 April  2016, n°14-28.296).

In this case, an employee, whose employment contract had been unilaterally transformed into a part-time employment contract in 1991, claimed constructive dismissal in 2012. The Supreme Court approves the judges ruling on the merits for considering that this claim for constructive dismissal triggered the consequences of a resignation. After stating that “constructive dismissal enables the employee to terminate the employment contract in case of a serious failure by the employer preventing the continuance of the employment contract”, the Supreme Court notes that, in this case, “the employer’s failure, which had imposed a unilateral modification of the employment contract on 21 July 1991 took place a long time ago”, so that “it did not prevent the continuance of the employment contract” (Supreme Court, Lab. Section, 13 April 2016, n°15-13.447).

In this case, an employee holding a trade union delegate position claimed the nullity of his dismissal for gross misconduct based notably on the ILO convention n°58, pursuant to which a dismissal cannot be notified before the employee is able to defend himself against the employer’s allegation. According to the employee, the letter inviting him to the pre-dismissal meeting should have stated such grievance in order for him to prepare his defense. The Supreme Court approves the judges ruling on the merits, holding that “stating the purpose of the meeting in the invitation sent to the employee by an employer who wishes to proceed with his dismissal and holding a pre-dismissal meeting during which the employee, who is allowed to be assisted, can defend himself against the grievance from his employer, is loyal and respects the employee’s rights” (Supreme Court, Lab. Section, 6 April 2016, n°14-23.198).

 

In this case, an employee, victim of an accident at the workplace, was declared unfit for his position as an offset driver following two medical examinations. One month later, he was considered to be fit for this position subject to specific modification of the position. The employee refused to take this position and claimed court-ordered termination of his employment contract. The judges ruling on the merits acceded to his claim on the ground that he had been declared unfit and was allowed to refuse redeployment offered by his employer and validated by the occupational doctor. The Supreme Court reverses this ruling to the extent that “the employee was declared fit for his position [following the unfitness notice], which was enforceable failing any claim before the labour inspectorate, so that the employer who offered the reinstatement of the employee on his modified position, pursuant to the occupational doctor’s recommendations, had not committed any failure by not proceeding with dismissal for unfitness and not searching for redeployment resulting from unfitness, like the payment of the salaries” (Supreme Court, Lab. Section 13 April 2016, n°15-10.400).

The Supreme Court indicates here that the reversal of the judgment whereby elections were cancelled does not trigger, by itself, the cancellation of the elections that followed and against which no claim was initiated within fifteen days. Therefore, in this case, the result of the last elections had to be taken into account to determine the representativeness of the trade unions (Supreme Court, Lab. Section, 12 April 2016, n°15-18.652).

While the judges were so far elected, the labour court judges will from now on be appointed by both the Minister of Justice and the Minister of Labour, upon submission by the trade unions and professional organizations, for a period of four years. The seats will be allocated to the organizations based upon a proportional representation. Some provisions of this text will come into force as from February 1^st 2017 and some others as from January 1^st 2018 (Ord. n°2016-388 of 31 March 2016, Official Journal of April 1^st).

 

A decree determines the conditions in which the staff representative institutions can meet through video-conference. It also sets the conditions to have recourse to the recording and the stenography of the meetings of the Works Council (D. n°2016-453 of 12 April 2016, Official Journal of 14 Avril).

Among such new provisions, the labour authority (DIRECCTE) will be entitled to set up a settlement offer, as from July 1^st 2016, as long as public action has not been initiated, on prosecution of a criminal offense constituting a minor offense (“contravention”) or a misdemeanour (“délit”). Once accepted by the offender, the settlement offer will be subject to the Prosecutor for acceptance (Ord. n° 2016-413 of 7 April 2016, Official Journal of 8 April and D. n°2016-510 of 25 April 2016, Official Journal of 27 April).