1) Failure to comply with the employer's safety obligation + moral harassment = judicial termination at the employer's fault.
The Paris Court of Appeal, in the two judgments of November 4, 2020 (n ° RG 19/06819 and 19/06824) affirms first of all that when an employee requests the judicial termination of his employment contract because of facts that he reproaches his employer, while continuing to work in his service, and that the latter subsequently fires him for other facts which have arisen during the continuation of the contract, the judge must first determine whether the request for termination of the contract was justified.
It is only in the opposite case that he must rule on the dismissal notified by the employer.
In this case, the employees invoke in support of their request for judicial termination, on the one hand, the failure of the employer to fulfill its obligation of security of result and on the other hand acts of moral harassment.
1.1) On the safety obligation: the breach of the resultant safety obligation alone justifies the request for judicial termination.
The Court of Appeal for reference affirms that the appellants first contend that the employer refused to implement preventive measures provided for by articles L4121-1 and L4121-2 of the Labor Code:
1 °) Thus increasing the arduousness of the work in the locker room, by eliminating the versatility of their job, in particular by:
. The hiring of external hostesses, proving to be incompetent with chaotic services, facts denounced from December 2011 to the labor inspectorate, then on October 19, 2012 and to the employer by letter of April 25, 2012 and during the meeting of staff representatives on May 23, 2012;
. Then the hiring of non-versatile employees on permanent contracts for the store and the sale of programs, leading to a deterioration in their working conditions, facts denounced at the meeting of staff representatives on June 13, 2012 but also by letter from the September 11, 2012 at the direction of the Bal du Moulin Rouge and the management's refusal to take into consideration the suffering at work, which in its letters, invokes in particular its power of direction or a new organization made necessary for the development of the commercial activity :
- The lack of motivation of employees paid on a fixed basis;
- The use of a service company for the cleaning of the toilets;
2 °) Not taking into account the conclusions of the CRAM and the CHSCT, the occupational physician and the CRRMP consulting physician.
3) Taking no action following the identification of risky situations in the single risk assessment documents (DUER).
Mrs Y specifies that this has led to a deterioration in her health and that of her colleagues, exposing to be on sick leave since April 10, 2012, suffering from extremely debilitating low back pain, disc disease which led to an operation and the installation of '' a lumbar prosthesis, as well as fibromyalgia and cervicobrachial neuralgia, caused by the carrying of too heavy loads represented by the piles of clothes in the locker room and aggravated by great stress, and produced various medical pieces to the 'support.
Ms. Z for her part specifies that this has led to a deterioration in her health and that of her colleagues, resulting in her incapacity.
The employees also invoke the refusal of the Bal du Moulin Rouge to set up a security service and to repair the windows of the Toulouse Lautrec store.
The company indicates that the cloakroom mainly includes the reception and return of personal effects left by customers and, secondarily, the sale of programs and products at the Toulouse Lautrec store as well as the maintenance of dedicated toilets. customer base.
She admits that 2/3 of the service's activity was spent in the dressing room stricto sensu.
She maintains that it is the employees of the locker room who decided on the assignments each day and their distribution among them.
She considers that she has taken preventive measures, in particular by reinforced medical surveillance of Ms Y and Z, by the establishment of DUERs where the professional category to which Ms Y and Z were assigned is listed and analyzed.
In visa article D4161-2 of the Labor Code, it specifies that employees never lift unit loads equivalent to 15 kilos.
Regarding the alleged deterioration of working conditions at the origin of Mrs Y's condition, the respondent specifies that fibromyalgia and sciatica were not recognized by the primary health insurance fund or by the regional committee for the recognition of occupational diseases as being related to their working conditions.
Finally, she indicates that the security service exists and that the window has been replaced.
The Paris Court of Appeal affirms that the Labor Code imposes an obligation of safety on the employer by articles L4121-1 and following, in their wording prior to the order of September 22, 2017, in these terms:
The employer takes the necessary measures to ensure the safety and protect the physical and mental health of workers.
These measures include:
1 ° Actions to prevent occupational risks;
2 ° Information and training actions;
3 ° The establishment of an organization and appropriate means.
The employer shall ensure that these measures are adapted to take account of changed circumstances and tend to improve existing situations.
The employer implements the measures provided for in article L4121-1 on the basis of the general principles of prevention provided for in article L4121-2 of the same Code.
It must ensure the effectiveness of these measures.
i) Reduction in the versatility of locker room employees.
In the case of Ms. Z, the Court of Appeal considers that it emerges from the documents produced by the parties that from the year 2006, in 2008, in 2010 and more markedly from the year 2012, the decisions management have had the effect of reducing the versatility of locker room employees, their intervention in so-called secondary tasks only being carried out during occasional replacements for rest or illness of dedicated employees.
The appellate judges noted that Ms. Y in her initial employment contract had the following functions:
"Cloakroom reception, sale to the public of programs and shop products and customer toilet maintenance".
However, it emerges from the documents produced by the parties that in December 2006, the company entrusted this last task to an external service provider, then in 2007 proceeded with the regular hiring over the year with a hostess agency, which were not versatile and had to be trained for the locker room, with a significant turnover having caused, in addition to a disorganization reported by the employees, a de facto reduction in the versatility of the locker room employees, their intervention in so-called secondary tasks more than during occasional replacements for rest or illness of dedicated employees.
ii) Increased arduousness of their employment.
Beyond the problem of remuneration exposed in their letters, the elected staff and union representative including Ms. Y and Ms. Z, drew the employer's attention, in particular in a letter to the chairman of the management board of September 11, 2012 on the issue. '' increase in the arduousness induced by the end of the versatility of their functions, recalling
“This handling work involves carrying heavy loads accompanied by repetitive movements throughout the evening.
However, you now impose this full-time job on us, which for us represents a workload that is difficult to bear year-round and which has not been specified in our conditions of employment ".
After reporting this problematic operation in a letter to the labor inspectorate in December 2011, one of Ms. Y's colleagues (Ms. Z) in an email on October 19, 2012 told the labor inspectorate about an incident that occurred in the evening , in the context of an understaffing due to the accident at work of one of her colleagues, underlining "a policy of disorganization" and concluding "our working conditions today are the worst that we have known" and attributing it to management decisions.
The Court affirms that if the employer was not aware of this email, he had necessarily been informed, if only by the legal action initiated by several employees including Ms. Y and Ms. Z from the end of May 2012 dealing with the safety obligation, the above-mentioned difficulties and in his response of October 2, 2012, he totally denies this “increasing hardship” by arguing that the employment contract has not been modified. , which is an inappropriate response.
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Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 34 rue Petrelle 75009 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: 25, rue Gounod 59000 Lille tel: 0320135083