In a decision of September 12th 2018 (n°16-11690), the Court of Cassation confirmed that a dismissal for serious ground (faute grave) notified to an employee who denigrated its employer on a closed Facebook group (groupe Facebook fermé) is unfair (sans cause).
The Court of Cassation considered that the impugned remarks were not a gross misconduct as they had been broadcast to a restricted circle of 14 people and that these remarks were in fact of a private nature.
I. The facts
Ms. Y, an employee of the Agence du Palais, managed by Ms. X ..., was hired on January 6th, 2004 as a real estate negotiator (négociatrice immobilière) by the Dupain company.
On 3rd March 2009, she was dismissed for gross misconduct (faute grave) on the grounds that she had made insulting and humiliating remarks against her employer.
The employee had joined a group on Facebook, called "Extermination of the leaders" (Extermination des directrices chieuses).
This Facebook group was closed (fermé) and accessible only to 14 people.
The employee appealed to Labour tribunal (Conseil de prud’hommes) to challenge her dismissal.
The Paris Court of Appeal considered that the dismissal was without real and serious cause.
The company went to cassation.
In the decision of September12th, 2018 (n°16-11690), the Court of Cassation confirmed the Court of Appeal's decision on the unfair dismissal.
II. The solution of the Court of Cassation
The Court of Cassation considers that dismissal for gross misconduct is without cause real and serious as the disputed remarks had been circulated to a small circle (14 people) and they had a private character.
The Court of cassation states that "after having found that the disputed remarks had been broadcast on the account opened by the employee on the Facebook network and that they had been accessible only to people approved by the latter and few, namely a closed group of 14 people, so that they were part of a conversation of a private nature, the Court of Appeal was able to hold that these remarks did not characterize a gross misconduct "; "That exercising the power it has under Article L. 1235-1 of the Labour Code, it decided that the grievance did not constitute a real and serious cause for dismissal".
III. What to think about such decision - Employees: set your Facebook account on confidential!
Employees, Facebook users must make sure to restrict the delivery of their messages by using a privacy setting.
Otherwise, they are exposed to the fact that their comments on Facebook, are used by their employer to justify a dismissal.
In a decision of March 24th, 2014, the Lyon Court of Appeal considered as a real and serious cause the abusive remarks of an employee on a Facebook wall with free access.
Similarly, if a disputed message has not been broadcast in a private sphere of exchanges because the employee has many friends, dismissal (for offensive language) could be validated.
Even if the context is completely different, we must reconcile the decision of September 12th, 2018 of the decision of December 20th, 2017, n° 16-19609 under which an employer had been convicted for violation of the private life for having used a Facebook publication of an employee before the Labour tribunal.
The Aix-en-Provence Court of Appeal had in fact dismissed the minutes of a bailiff's report which contained information extracted from an employee's Facebook account obtained from another employee's mobile phone.
In this case, the employer questioned the depressive state of which an employee was reporting by producing a bailiff's report (procès-verbal d’huissier) which reported information from her Facebook account to which the employer did not have authorized access and whose knew about the mobile phone of another employee.
Confirming the decision of the Court of Appeal, the Court of Cassation stated that "the report of bailiff's report drawn up on March 28th , 2012 at the request of the company reported information extracted from the employee's Facebook account obtained from the mobile phone of another employee, information reserved to authorized persons ", the Court of Appeal was able to deduce that the employer could not access it without bringing disproportionate and unfair damage to the privacy of the employee" .
Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)
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