Jul
12
Protected employees (salaries protégés) : Unlawful dismissal of a representative of a trade union section: ceiling of compensation at 30 months (C. Cass May 15th, 2019, n°18-11036)

In a decision of May 15th, 2019 (n° 18-11.036), the Court of Cassation ruled that the compensation due to the union section representative (RSS) in case of violation of its protective status could not exceed 30 months’ salary.

1) Background

Employees holding a mandate in Article L. 2411 of the Labor Code, such as shop stewards or staff representatives, are protected against dismissal.

Thus, protected employees cannot be dismissed without the authorization of the labor inspector.

Therefore, the employee dismissed without authorization from the labor inspector can request his reinstatement.

If he does not request it, he is entitled to compensation for breach of protective status, equal to the remuneration he should have received since his eviction until the end of his period of protection.

The Court of Cassation, however, set a limit to this compensation by capping it at 30 months salary.

Applicable initially only to the elected representatives of the personnel (Cass.soc., April 15, 2015, n ° 13-24182), this ceiling was then extended to other protected employees.

The judgment of May 15, 2019 is part of this movement of harmonization. It effectively transposes the 30-month salary ceiling to union section representatives (RSS).

2) Facts and procedure

In this case, an employee is designated as a union representative on August 22nd, 2012. He is dismissed for serious misconduct on November 8th, 2012, without seeking the authorization of the labor inspector.

He appealed to the jugdment in nullity of his dismissal.

The case was brought before the Court of Appeal, which ordered the employer to pay compensation equal to the amount of wages that the employee should have received between the date of his eviction and the end of his period of protection. thirty-six months.

The employer then lodged an appeal on points of law.

3) Solution of the Court of Cassation

The Court of Cassation censored the reasoning of the appellate judges for calculating the compensation without taking into account the restriction of 30 months wages.

In its decision of May 15th, 2019, the Court of Cassation states that "the union representative who does not request the continuation of the employment contract unlawfully broken is entitled to compensation for violation of the protective status equal to the remuneration he would have from the moment of its expulsion until the expiry of the period of protection, within the limit of thirty months, the statutory minimum duration of the elected representatives of the staff increased by six months ".

The indemnity due to the union section representative in case of violation of the protective status is thus limited to a maximum of 30 months' salary.

4) Analysis of CHHUM AVOCATS (Paris, Nantes, Lille)

The 30-month salary limit, originally applicable to elected staff representatives (Cass.soc., April 15, 2015, No. 13-24182), was then extended to other types of mandates such as adviser prud'homal (Cass.soc, February 3, 2016, n ° 14-17000) or adviser of the employee (Cass soc, June 30, 2016, n ° 15-12982).

It is therefore in the interests of homogeneity that the High Court has transposed this limit to the representative of the trade union section.

Sources:

- Cass.soc., May 15, 2019, n ° 18-11036: https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000038507998&fastReqId=346172023&fastPos=1

 

- Article L. 2411-1 (Labor Code): https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000035652370&cidTexte=LEGITEXT000006072050&dateTexte=20180101

 

- Cass.soc., April 15, 2015, n ° 13-24182: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000030496756

 

- Cass, soc., February 3, 2016, n ° 14-17000: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000031988892

 

- Cass. soc, June 30, 2016, n ° 15-12982: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000032834207

 

Frederic CHHUM

Frédéric CHHUM Lawyer and member of the Paris Bar Council

Nina BOUILLON

CHHUM AVOCATS (Paris, Nantes, Lille)

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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