In a decision of November 4th 2020 (no. 18-15.669), the Court of Cassation stated that the decision of the Court of Appeal declaring a dismissal null and void on the basis of whistleblower protection must be overturned if it has not been established "that the employee had related or testified to facts likely to constitute a misdemeanour or a crime" (Ruling no. 969 of 4 November 2020, 18-15.669).
The stakes are high because if the conditions are met to benefit from whistleblower status, protection is provided by legislation.
Cf. our article Whistleblowers: what protection? (https://www.village-justice.com/articles/lanceurs-alerte-quelle-protecti...)
1) Reminder of the facts.
Mr W was hired as a senior consultant by Eurodecision, a company specialized in the development of software solutions and expertise in the field of optimization and decision support solutions.
He was entrusted with a mission at a Renault technocentre.
During an interview on 16 March 2016, the employer mentioned with the employee that he had been informed of a political e-mail sent by him to Renault employees.
On 18 March 2016, the employer notified him of a preventive layoff and called him to a preliminary interview scheduled for 25 March 2016 with a view to possible dismissal.
On March 31, 2016, the employee received a warning for breaching Renault's information guide and in particular his letter of assignment to the technocentre.
He was dismissed on April 21, 2016 for serious misconduct, as the employer accused him of breaching its obligations of loyalty and good faith, for having made a sound recording of the informal interview of March 16, 2016 without his knowledge and for having communicated this recording to third parties in order to ensure its broadcast on March 21, 2016 as part of a video posted on the Youtube website.
The recording revealed that during the interview on 16 March 2016, the employer had stated :
"so they're monitoring, they're monitoring the emails, and in your opinion whose emails they're monitoring first... Well the emails of the trade unionists of course... you're supposed, as a speaker at Renault, (to) discuss with the Renault unions. The Renault trade unions, they are there for the employees of Renault...".
The employee, arguing that his dismissal had taken place in breach of the protection of whistleblowers, applied to the interim relief judge for an order to cease the manifestly unlawful disturbance resulting from the nullity of his dismissal and for the granting of provisions to be applied against the compensation for his loss.
The trade unions joined his requests.
The case was then brought before the Versailles Court of Appeal on February 27, 2018, which declared the employee's dismissal null and void for infringement of freedom of expression.
The employer then appealed to the Court of Cassation.
2) The Court of Cassation's decision of 4 November 2020: the status of whistleblower is conditional on the testimony of facts likely to constitute a misdemeanour or a crime.
In a decision of 4 November 2020 (No. 18-15.669), the Court of Cassation overturned the Versailles Court of Appeal's decision of 27 February 2018.
The employer argued that "The nullity of dismissal based on the employee's denunciation of unlawful conduct or acts observed by him in the workplace can only be declared null and void for violation of his freedom of expression if the facts thus reported are such as to characterise criminal offences for which his employer is responsible; that by granting the employee the status of "whistleblower" in the absence of the slightest indication of criminal misconduct on the part of the employer, the Court has once again infringed the provisions of Article L1132-3-3 of the [French] Labour Code".
In its ruling of 4 November 2020, the Court of Cassation, in substance follows the reasoning of the plaintiff in cassation.
In fact, the Social Chamber, with reference to Article L1132-3-3 of the [French] Labour Code, in its wording derived from Law no. 2013-1117 of 6 December 2013, states that
"According to this text, no employee may be sanctioned, dismissed or be the object of a discriminatory measure, directly or indirectly, for having related or testified, in good faith, to facts constituting a crime or a crime of which he or she would have become aware in the performance of his or her duties.”
It notes that "In order to convict the employer to pay various sums to the employee and the trade unions, the decision holds that the facts of the infringement of freedom of expression in the context of exchanges with a trade union were revealed through the internet media when the disputed recording was broadcast on 21 March 2016 and then during the interview between the employee and a journalist on 22 March 2016, whereas M. W... had personally observed in advance that his employer was calling into question his right to free communication with Renault's trade unions, in light of the comments made by the Eurodecision company director during the informal interview on 16 March 2016 and the disciplinary procedure with protective dismissal initiated on 18 March 2016 and followed by a warning and then his dismissal for serious misconduct.
The decision infers that the employee is entitled to invoke the status of whistleblower and concludes that, pursuant to Articles L1132-3-3 and L1132-3-4 of the [French] Labour Code, the dismissal should be declared null and void.”
However, the Court of Cassation did not follow the reasoning of the Versailles Court of Appeal and overturned the ruling, stating that by "Ruling thus, without finding that the employee had reported or testified about facts likely to constitute a misdemeanour or a crime, the Court of Appeal violated the aforementioned text".
Indeed, according to the Court of Appeal, in order to benefit from whistleblower status, the facts recounted or testified to by the employee must be likely to constitute a misdemeanour or a crime, which is not the case here.
Thus, the Court of Cassation, in a decision of 30 June 2016 (no. 15-10.557), had already declared a dismissal null and void, which "was motivated by the fact that the employee, whose good faith could not be called into question, had reported to the public prosecutor facts that could be qualified as criminal offences committed within the association".
See our article on Whistleblowers: nullity of the dismissal of an employee who, in good faith, had denounced acts that could be classified as criminal (https://www.village-justice.com/articles/Lanceurs-alerte-Nullite-licenciement-salarie-ayant-denonce-bonne-foi-des-faits,22782.html).
3) The other conditions of whistleblower status.
Article L1132-3-3 of the Labour Code specifies that no sanction, dismissal or discriminatory measure may be pronounced against an employee.
"for having reported or testified in good faith about facts constituting a misdemeanour or crime of which he or she became aware in the execution of his or her duties".
In the instant case, therefore, the conditions necessary for the protection of the whistleblowers were all met, except that the facts had to be capable of constituting a misdemeanour or a crime.
The employee had indeed been aware of what the employer had said in the course of his duties.
Nor was his good faith called into question, as the Court of Cassation had stated in a judgment of 8 July 2020 (no. 18-13.593) that bad faith could only result from the employee's knowledge that the facts he denounced were false and not solely from the fact that the facts denounced were not established (Ruling no. 628 of 8 July 2020, 18-13.593).
Here, the facts were not in themselves disputed, as the employee's knowledge of their falsity did not arise.
Thus, it was the absence of facts likely to constitute a misdemeanour or a crime that prevented the employee from being recognised as a whistleblower.
Website of the Court of Cassation
Cass. Soc. 4 Nov. 2020, n° 18-15669
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Traduction : Giulia Marcie
CHHUM AVOCATS (Paris, Nantes, Lille)
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