Apr
22
French labour law - Hotels Cafés Restaurants : a night manager of the Napoleon hotel obtains 52,000 euros for unfair dismissal (CPH Paris February 19th, 2021, not final)

In a judgment of February 19, 2021 (RG n ° 19/01354), the Paris Labor Council ruled that the dismissal for serious misconduct of a night manager at the Hotel Napoleon was without real and serious cause.

The Night Director obtains 52,255.03 euros gross before the Paris industrial tribunal.

The company appealed against the judgment.

1) Reminder of the facts

The simplified joint-stock company (hereinafter "SAS") FECIT operates the Hôtel Napoléon, a 5-star luxury hotel, located in Paris in the 8th arrondissement.

Mr. X was hired by the company FECIT as of September 17, 2001 by written contract of indefinite duration full time as a concierge.

On October 1, 2007, Mr. X was promoted to the post of night manager, executive status, and last received a gross monthly salary of 2,642.40 euros and various bonuses.

Mr. X was promoted from receptionist concierge to night manager because of the quality of his work.

During his 17 years of collaboration with the Hôtel Napoléon, Mr. X has always given satisfaction in his work.

The average of the last twelve months of salary was 4,022.57 euros.

The employment relationship was subject to the National Collective Agreement for Hotels, Cafes and Restaurants.

Mr. X worked on a two-week shift, from Sunday to Tuesday, then from Sunday to Wednesday, from 8 p.m. to 8 a.m.

Mr. X would not have been able to take his break time as he was alone at the hotel reception with only a night porter.

Since the two jobs are not interchangeable, Mr. X was to be available to hotel guests from 8 p.m. to 8 a.m. in case of any arrivals or requests.

Nonetheless, Mr. X tried to take time off while making himself available to hotel guests.

On September 26, 2018, Mr. X learned of the name of the porter that night and allegedly alerted his management to the medical treatment the porter was undergoing, which would lead to deep sleep.

Management reportedly indicated that it had no other choice as it would have been understaffed.

During the night of September 26 to 27, 2018, while Mr. X was on a break, the night porter dozed off and an individual entered the hotel, broke the establishment's cash register and stole the sum of 3,000 euros.

During the break-in, Mr. X was on a break and had not heard anyone breaking into the hotel when the porter dozed off in the hotel lobby.

The closing of the doors was the responsibility of the evening catering manager, who had noted in a document that he had closed the front door and the terrace before his departure.

On September 28, 2018, Mr. X was dismissed for serious misconduct for repeated breaches of his contractual obligations, lack of loyalty and endangering the safety of the establishment, customers and staff.

The employer, who relies on video surveillance, did not comply with Article 13 of the General Data Protection Regulation (hereinafter "GDPR"), which makes the evidence provided by the hotel illegal.

CCTV cameras are located at reception and hotel entrance, in public places, to ensure the safety of people and property.

On February 15, 2019, Mr. X applied to the Paris Labor Council to reclassify his dismissal for serious misconduct into a dismissal without real and serious cause.

2) Judgment of the Paris Conseil de prud’hommes of February 19th, 2021 (joint formation)

By judgment of February 19, 2021, the Paris Labor Council:

- Holds that the video surveillance is illegal proof and that the dismissal is without real and serious cause;

- Orders SAS FECIT operating under the Hôtel Napoléon brand to pay Mr. X the following amounts:

o 2,717.52 euros as a reminder of salary during the conservatory layoff;

o € 271.75 for the related paid leave;

o 12,067.71 euros as compensation in lieu of notice;

o € 1,206.78 for the related paid leave;

o 19,348.56 euros as legal compensation for dismissal;

o 3,250 euros as a night premium reminder;

o 325 euros for the related paid leave;

o 12,067.71 euros as compensation for dismissal without real and serious cause;

o 1,000 euros under article 700 of the Code of Civil Procedure.

- Order the reimbursement of unemployment benefits to Pôle Emploi up to 6 months;

The night manager of the Hôtel Napoléon obtained a total of 52,255.03 euros.

The company appealed against the judgment.

The judgment is not final.

2.1) Break time and maximum duration of night work

The Paris Labor Council rejects Mr. X of his requests for break times and non-compliance with the maximum night work duration "on the grounds that" all of the elements, as developed by the parties , and the documents provided ”do not make it possible to verify that the reproaches of Mr. X are true.

The industrial tribunal recalls that article L.3121-16 of the Labor Code provides that “as soon as the daily working time reaches six hours, the employee benefits from a break time of at least twenty minutes. consecutive.

Mr. X never complained about not being able to take his break time in his 17 years of service.

Mr. X cannot claim that his employer prohibited him from taking a break since he himself claims to be on break at the time of the break-in. "

2.2) On moral harassment

The Paris Labor Court rejects Mr. X of his claims for moral harassment "on the grounds that all the elements, as developed by the parties, and the documents provided" do not make it possible to verify that the alleged facts by Mr. X are established.

Mr. X maintains that he suffered acts of moral harassment because of the ban on taking breaks resulting in non-compliance with the provisions of Article L.3121-16 of the Labor Code on the one hand, and of the exceeding the maximum daily duration on the other hand.

2.3) On the night premium: the unequal treatment suffered by the Night Director of the Napoleon Hotel

The Paris Labor Council orders the Hôtel Napoléon to pay the night premium within the limit set out in Article L.3245-1 of the Labor Code:

- 3,250 euros for night bonus reminder from October 2015 to October 2016;

- 325 euros for the related paid leave.

In fact, since the bonus is conditioned by the performance of work performed at night, the information provided by the Hotel Napoleon is neither objective nor verifiable and does not explain why Mr. X was excluded from the payment of the said payment.

From November 2016, Mr. X began to receive a night premium.

Employees working at night at the Hôtel Napoléon, as attested by the union delegate, benefited from a night premium long before 2016.

In 2010, the union representative testified that she asked the employer to allocate the same night premium; the employer had refused.

Neither the law nor the collective agreement provide for financial compensation for night work, however the Hôtel Napoléon has implemented a night premium for employees working at night.

2.4) Dismissal for serious misconduct by the Night Director is deemed to have no real and serious cause

2.4.1) On the illegality of the evidence constituted by the collection of information by video surveillance

The Paris Prud'hommes Council pronounces the illegality of the evidence constituted by the collection of information by video surveillance and rejects the employer's argument on the proof of serious misconduct ”on the grounds that“ the Napoleon Hotel failed in its obligation to ensure the adequacy, relevance and non-excessive nature of the data.

The industrial tribunal recalls Article 3 of the GDPR according to which when it intends to carry out further processing of personal data for a purpose other than that for which the personal data were collected, the controller provides the data subject with information in advance about this other purpose and any other relevant information.

In addition, the opposing party argues that "the hotel proceeded to inform and consult staff representatives, inform employees and obtain authorization from the police headquarters. "

The Paris Labor Council explains, for its part, that "Hotel Napoleon justified the installation of video surveillance in order to ensure the safety of property and people.

These tools are legitimate for ensuring the safety of goods and people; they cannot lead to placing employees under constant and permanent surveillance.

Finally, the lack of supervision of Mr. X on the night of the break-in undoubtedly endangered the safety of the hotel, customers and staff.

The Paris Labor Council, for its part, declares that "the deployment of the video surveillance system infringed Mr. X's rights and his freedom without justification of the proportionality to the purpose of protecting property and persons.

2.4.2) On the absence of evidence to verify that the complaints against the Night Director are established

The Paris Labor Court "reclassifies dismissal for serious misconduct into dismissal without real and serious cause and condemns the Hôtel Napoléon to the payment of the aforementioned sums", on the grounds that "all the elements, as developed by the parties, and the documents provided ”, do not make it possible to verify that the complaints made to Mr. X (repeated breaches of his contractual obligations, lack of loyalty and endangering the safety of the establishment, customers and staff) are established.

The prudential judge explained that Mr. X took his 45-minute break at 4 hours 19 minutes and the break-in occurred at 4 hours 51 minutes.

Mr. X provides proof by Exhibit 19 that the catering manager has checked the box “closing the front and terrace door.

The opposing party argues that Mr. X, as line manager, shares responsibility for the failure to close the doors.

The Paris Labor Council explains, for its part, that "Mr. X is not responsible for the forgetting of the manager of the restaurant who did not close the door to the facade and the terrace while he said he did. "

Mr. X alerted his superiors to the side effects of the porter's drug treatment on the night shift.

Mr. X took a break to which he was entitled.

Mr. X, during his break, cannot be responsible for the porter falling asleep.

Mr. X has an obligation of vigilance on the security of the hotel during the night and has the responsibility of supervising the staff under his authority, however, Mr. X, cannot control all the tasks of the employees.

2.5) On article 700 of the Code of Civil Procedure

Mr. X, having been forced to take legal action to have his rights recognized and to incur irreparable costs, is admissible in his request on the basis of article 700 of the Code of Civil Procedure within the limit set by the Council herein. device up to 1,000 euros, which does not otherwise specifically justify these costs.

Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

Jeanne Péché juriste

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083

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