Dec
01
French labour law - Team building: dismissal for serious misconduct of a manager who forced its colleagues to walk on crushed glass (c. cass. oct. 23rd 2019, n°18-14260)

Attention, cutting corporate spirit!

On 23 October (1), the Court of Cassation confirmed the dismissal for serious misconduct of a manager who had his team participate in a team bulding which one of the activities in the program include inviting employees to walk barefoot on glass.

1. Facts and procedure

During this "team booster", "the last test was to break in turn a glass bottle wrapped in a towel with a hammer, to deposit the broken glass on a piece of cloth lying on the ground and to take a few steps on the glass thus broken barefoot ".

Mr. X., an employee among all the others who "executed themselves", refused to participate. He "would be out of the room in tears" before he was "forced to explain to the group that he had decided not to walk on the pieces of glass."

The occupational doctor had been alerted by Mr. X., then a respondent had also been led by the company.

On the one hand, it was found that Mr. X had to explain that he could not participate "because he was a carrier of a pathology" and "that he had reacted strongly emotionally because of his isolation fearing retaliation from his manager on his annual bonus.

On the other hand, for all other employees, the incident had generated "tension and discomfort described on different scales" by each of them.

At the end of the investigation, the manager had been dismissed for serious misconduct.

2. For the manager, the glass half full

The dismissed employee then contests his dismissal, claiming that he had "only complied with the instructions of his employer". Indeed, it was "in accordance with the instructions of his employer" that he had entrusted "the organization of this event to a provider referenced by him".

Thus, according to the employee, "the employer who requires the employee to supervise a risky activity cannot blame him for the realization of this risk in the context of this organized activity under the conditions he has imposed".

He also tried to discredit the dismissal procedure followed by the employer. Informed the day after the occurrence of the facts by the occupational doctor, the company would have been too late before initiating an investigation.

Thus, by dismissing the employee only on February 18 when the incident occurred on December 3, "the employer can not be allowed to rely on an incomplete knowledge of the alleged facts and the consequential need to implement an investigation when it was slow to implement this investigation and to draw the consequences ".

3. For the Court of Cassation, half-empty glass

The Court of Cassation sweeps the argument relating to the procedure; for it, the ground of appeal is "new", "mixed fact and law" and therefore, "inadmissible".

With regard to the justification of the dismissal, the judges of the High Court held that, of the absence of intervention of the employee, during the internship, "to preserve the physical and psychological integrity of his collaborators", it results the "lack of knowledge of its obligations resulting from the provisions of Article L. 4122-1 of the Labor Code".

Thus, the serious fault is characterized.

This decision gives a new illustration of the obligation of security which each employee is debtor with regard to his colleagues.

Directly based on Article L. 4122-1 of French Labor Code (2), the expected gives the opportunity to remember the content of this obligation:

"In accordance with the instructions given to him by the employer, under the conditions laid down in the rules of procedure for the companies required to draw up one, it is the responsibility of each worker to take care, according to his training and according to his possibilities, of his health and safety and that of others involved in his acts or omissions at work "

By extending the scope of this obligation beyond the normal framework of the execution of work, the position of the social chamber is a reflection of the practices in vogue in companies as well as outside. Indeed, at the time of prevention campaigns against extreme hazing and other weekend integration that go wrong, even the professional world and its leaders are invited to vigilance.

Lastly, the subordination link which binds the organizers to the Management, had itself validated the choice of provider, does not exempt them from their obligations towards other employees.

Only representatives of the hierarchy during the team-building, the employee manager must ensure the safety of the members of his team during the proposed activities.

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  1. Cass. Soc., October 23, 2019, n ° 18-14260: https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000039307323&fastReqId=732944503&fastPos=1

 

(2) L. 4122-1, French Labor Code: https://www.legifrance.gouv.fr/affichCode.do;jsessionid=57F0DE6900C6573EE9F5E28202DE42A6.tplgfr43s_1?idSectionTA=LEGISCTA000006178067&cidTexte=LEGITEXT000006072050&dateTexte=20180401

Frédéric CHHUM, Avocats à la Cour et membre du conseil de l’ordre des avocats de Paris

Claire Chardès

e-mail : chhum@chhum-avocats.com

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www.chhum-avocats.fr

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