Mar
05
French labour law - Moral harassment: the taking of act (prise d’acte) by an account manager must produce the effects of unfair dismissal (CPH Paris Departage 14/01/2021)

In this final decision of January 14th, 2021 (RG n °: 17-07435), the Paris Labor Council considers that the taking of an act of the breach of the employment contract of the account manager must produce the effects of a null dismissal justified by the moral harassment of which she felt she had been the victim.

The Labor Court considers in particular that in matters of moral harassment, the company's CHSCT investigation cannot replace the judgment of the Labor Court. The judgment is not final.

1) Reminder of the facts and procedure

Ms. X was hired by DOMAXIS SA ’HLM as of March 4, 2014, under an open-ended contract, as account manager.

She last occupied and since March 1, 2017, the position of specific allocation officer, coefficient G3 for a gross remuneration of 2,046.18 euros. On November 18, 2015, Madame X was subject to a warning.

On July 18, 2017, Mrs X denounced to her employer the acts of moral harassment of which she claimed to be a victim. On July 19, 2017, Ms. X referred to the industrial tribunal a request for judicial termination of her employment contract.

By letter of November 24, 2017, she took note of the termination of her employment contract, to the exclusive fault of the employer. After the failed conciliation attempt, the case was argued at the adjudicatory hearing and then returned to the tiebreaker hearing.

At the final hearing, the parties orally set out the arguments developed in their written submissions. Mrs X, argues in support of her claims that she was the victim of acts of moral harassment which made it impossible to continue her employment contract, that her taking an act of the termination of the employment contract is attributable to her employer and that it must produce the effects of a null dismissal.

DOMAXIS SA d´HLM contests the acts of moral harassment denounced by the employee and maintains that the employee's taking action should amount to a resignation. By contradictory judgment dated January 14, 2021, the departing judge of the Paris Labor Council:

. Holds that Madame X was the victim of moral harassment.

. Holds that taking notice of the termination produces the effects of no dismissal.

. Orders DOMAXIS SA d´HLM to pay Mrs X the sums of:

- 15,000 euros in damages for no dismissal

- 4,092.36 euros for the compensation in lieu of notice

- 409.23 euros for the related paid leave

- 1,550.15 euros for contractual severance pay

- 5,000 euros in damages for moral harassment

. Ms. X rejects her claim for damages for breach of the safety obligation.

. Said that the salary sentences will bear interest at the legal rate from the receipt by the employer of the summons to the conciliation office and those of a compensatory nature, from this decision.

. Orders the delivery of an employment center certificate and a work certificate in accordance with this decision.

. Holds that there is no need to impose a penalty.

. Orders the provisional execution.

. Orders DOMAXIS SA of HLM to pay Madame X the sum of 1,500 euros under Article 700 of the Code of Civil Procedure.

. Orders DOMAXIS SA D'HLM to pay all the costs.

In total, Mrs X obtains the sum of 27,551.74 euros.

The judgment is not final, with the parties having until February 15, 2021 to appeal.

 

2) On the taking of an act of termination of the employment contract

2.1) The moral harassment suffered by the employee justifies taking the act of termination to produce the effects of no dismissal.

The Paris Labor Court, on January 14, 2021 (n ° RG F 17/07435), ruling as a tie-breaker, recalls that breaches by the employer of its obligations, as long as they are sufficiently serious and recent to prevent the maintenance of the employment contract, justify the taking of an act by the employee of the breach of his contract, to the wrongs of the employer.

This rupture can then be analyzed as a dismissal without real and serious cause, where applicable in a null dismissal, if the rupture occurs because of acts of moral harassment of which the employee would have been the victim.

Proof of the breaches alleged against the employer must be reported by the employee.

The prudential judge also recalls the applicable legal provisions.

Pursuant to the provisions of Article L.1152-1 of the Labor Code, no employee must suffer repeated acts of moral harassment which have as their object or effect a deterioration of their working conditions likely to infringe their rights. and their dignity, to alter their physical or mental health or to compromise their professional future.

 

Article L. 1154-1 of the Labor Code specifies that, when a dispute arises relating to the application of the aforementioned provisions, the employee establishes facts which make it possible to presume the existence of harassment.

In view of these elements, it is for the defendant to prove that these actions do not constitute such harassment and that its decision is justified by objective factors unrelated to any harassment.

The judge forms his conviction after ordering, if necessary, all the investigative measures he considers useful.

In this case, Mrs X, who justifies having taken note of the termination of the employment contract by letter of November 24, 2017 after having sent her employer emails dated July 18, 2017 and August 29, 2017 by which she complains of acts of moral harassment, produces the following elements:

- Several sick leaves for depression.

- A warning, which she considers unjustified, notified on November 8, 2015.

- A questionnaire dated October 18, 2016 drawn up as part of an investigation for moral harassment in which Ms. X reports an abnormal overload of work and insults to which she is the victim from another employee, Ms. Y.

- Emails of June 1, 2015 and April 25, 2016 by which she requests the regularization of her 2014 meal vouchers.

- An e-mail of December 23, 2016, under the terms of which she is a candidate for two posts of litigation officer and a follow-up e-mail of January 10, 2017 in which she is surprised to have had no response, a letter addressed to her employer on January 17, 2017 by which she refused her assignment to a position of "technical assistant" considering that it was a demotion and finally an email of January 24, 2017 by which she was surprised to be summoned to an interview for a specific allocation officer position for which she has not applied.

- Reminders from his employer, in November 2016, for not having sent his sick leave on time.

- Exchanges of letters demonstrating that a control visit was set up on July 10, 2017, while she was on sick leave, DOMAXIS SA of HLM then decided to withhold her additional salary.

- A proposal for contractual termination made by his employer.

- His employer's refusal to grant him RTT on August 7, 2015.

- Letters reminding us of unjustified absences dated November 17 and 18, 2017 while she was on sick leave.

The prud'homal judge considers, on the other hand, that Mrs X does not provide evidence demonstrating that she was the subject of a petition requesting her departure from the service or of an attempted eviction on the rehousing objectives.

In addition, he considers that the elements established by the employee, including the medical elements, nevertheless suggest the existence of moral harassment.

The prudential judge noted that DOMAXIS SA of HLM, for its part, produced elements capable of demonstrating that some of the facts invoked were justified by objective elements unrelated to any moral harassment.

 

Regarding the employee's application for the litigation position, DOMAXIS SA from HLM argues that this application was made orally, that it was also answered orally during an interview on January 13, 2017, that this The position required legal training that the employee did not have and that in order to respond to the employee's desire for mobility, a specific allocation manager position was offered to her, which the latter accepted.

The prudential judge noted that these points were confirmed by the exchanges of emails sent to the debates.

In addition, it establishes that the classification and the remuneration remained the same and that it was not, contrary to what the employee claims, a demotion.

Regarding the problem of restaurant vouchers, the labor tribunal considers that DOMAXIS SA d'HLM justifies that the difference between it and the employee on this subject was finally settled in early June 2016, after Ms. X had sent, on May 27, 2016, a table explaining its calculation.

Regarding the contractual termination, the industrial tribunal still considers that the employer justifies exchanges of emails demonstrating that the parties considered this solution which was discussed and that the employee ultimately refused, estimating the amount of the 'proposed compensation insufficient.

Regarding the reminders during the sick leaves of November 17 and 18, 2016, the labor tribunal maintains that it is up to the employee to demonstrate that she has, in accordance with the company agreement, justified her absence in sending his employer a notice of stoppage of work within 48 hours.

However, the industrial tribunal noted that Mrs X did not justify having sent her judgment on time, DOMAXIS SA from HLM claiming to have received it only 10 days later, the reminders having thus been generated automatically until upon receipt of sick leave.

The prudential judge considers that the other facts established by Ms. X are not justified by objective elements.

Indeed, the industrial tribunal notes that, if the possibility for the employer to organize, in the event of sick leave, a counter visit is expressly provided for by the company agreement of December 7, 2012 which provides that in the event of the employee's absence during the inspection or the employee's refusal to submit to the counter-visit, the employer immediately ceases the payment of the additional salary after having informed the employee, it results from the elements contributed to the discussions and the explanations given by the parties that the control put in place by DOMAXIS SA from HLM could not be completed, not because of the absence or refusal of the employee, but because her name did not appear on the letterbox of the person by whom she claimed to be accommodated, without the controller or the employer nevertheless seeking to contact her to obtain this name specified and the visit to be successful.

In addition, the labour law judge considers that the result of a first CHSCT investigation relating to acts of moral harassment concerning another employee, and of the questionnaire completed by Ms. X on October 18, 2016, that the latter herself been the victim of repeated insults and serious threats from a hierarchical superior, which DOMAXIS SA d'HLM does not dispute, claiming to have taken all the necessary measures to dismiss the employee responsible for the acts.

The labor court judge considers that it results from this same hearing and the assessment interviews that Mrs X complained of an overload of work, confirmed by several exchanges of emails concerning in particular Mrs Z, DOMAXIS SA of HLM having never taken the slightest measure on this subject and taken on the contrary the decision to sanction Mrs X who was no longer able to cope with all of these tasks by a warning in November 2015 or to refuse her RTT, at unjustified reason for an allegedly missed deadline.

According to the labor court judge, it is thus established that the employee was the victim of acts of moral harassment in 2015 and 2016, that she was the subject of several sick leaves for depression in 2017 and reported to her employer. suffering at work, which DOMAXIS SA of HLM did not take into account, replying by letter of September 1, 2017 that she “disagreed against the allegations that Ms. X would be subjected to acts of harassment morale within the company ”, while no investigation had yet been established.

The labor court judge considers that, if DOMAXIS SA d'HLM justifies an investigation by the CHSCT subsequent to the referral to the labor tribunal by the employee, concluding at the end of a series of interviews held on November 22 and December 7, 2017, in the absence of moral harassment, on the grounds that the grievances invoked by Mrs X during her hearing were imprecise, this investigation which confirms the point of view adopted by the employer on September 1, 2017 and contradicts the terms of 'a first investigation by the CHSCT, carried out in 2016, cannot replace the judgment of the industrial tribunal.

Consequently, the prudential judge maintains that it is appropriate to say and judge that Ms. X was the victim of acts of moral harassment.

According to the labor court judge, these facts, which began in 2015 and continued until November 2017, are serious enough to prevent the maintenance of the employment contract, justify the taking of an act by the employee of the termination. of his contract, to the wrongs of the employer.

Consequently, the prudential judge maintains that it should be said and held that the taking of the act produces the effects of a null dismissal.

2.2) On the financial consequences of the rupture

As the act has been taken producing the effects of a null dismissal, Mrs X is entitled to the payment of damages, the amount of which cannot be lower than the salary of the last 6 months.

The prud'homal judge maintains that Ms. X, who had 4 years of seniority at the time of the termination, producing no information on her professional situation subsequent to the dismissal, and acknowledging having found a job a few months later, it is necessary to assess its loss in the sum of 15,000 euros and to order DOMAXIS SA d'HLM to pay this sum, in addition to the sums of:

- 4,092.36 euros for the compensation in lieu of notice

- 409.23 euros for the related paid leave

- 1,550.15 euros for contractual severance pay

With regard to damages for moral harassment, the prudential judge assesses the employee's loss at the sum of 5,000 euros and orders DOMAXIS SA of HLM to pay this sum.

The prudential judge considers that Ms. X, who does not justify a loss distinct from that resulting from moral harassment, will be dismissed of her claim for damages for breach of the safety obligation.

3) On other requests

3.1) On interest

In accordance with the provisions of article 1231-7 of the Civil Code, the labor tribunal affirms that salary sentences will bear interest at the legal rate from the receipt by the employer of the summons to the conciliation office and those to compensatory nature, from the date of this decision.

3.2) On delivery of documents

The prudential judge orders the delivery of an employment center certificate and a work certificate in accordance with this decision.

He specifies that there is no need to impose a periodic penalty payment.

3.3) On other requests

The prudential judge considers that the provisional execution is compatible with the nature of the case and that it should be pronounced.

Indeed, he holds that in order to assert his rights, the plaintiff had to incur costs that it would be unfair to leave to him.

Consequently, he orders the defender to pay him the sum of 1,500 euros under Article 700 of the Code of Civil Procedure, in addition to costs.

Frédéric CHHUM lawyer and member of the Paris Bar Association (mandate 2019-2021)

Léa Foucaud student lawyer EDAGO

CHHUM AVOCATS LAW OFFICE (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

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

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