frederic.chhum

Par frederic.chhum le 16/09/19
Dernier commentaire ajouté il y a 13 heures 37 min

Le 16 septembre 2019, Maître Frédéric CHHUM a été interviewé au journal TV de 9h00 par la chaîne de télévision RT FRANCE sur la manifestation des avocats concernant le projet de régime de retraite universelle.

Pour visionner la vidéo, cliquez sur le lien ci-dessous.

https://twitter.com/RTenfrancais/status/1173528366412161025?s=20

Frédéric CHHUM, avocat et membre du conseil de l’ordre des avocats de Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

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

Par frederic.chhum le 30/08/19
Dernier commentaire ajouté il y a 2 semaines 3 jours

When an employee accuses its employer of breaches of his employment contract (shelving, non-payment of overtime, non-compliance with the standard minimums, etc.), he/she may take the initiative and ask the judge for judicial termination (résiliation judiciaire) from its employment contract to the employer's excusive agreement or take note of the termination (prise d’acte de rupture) of the employment contract.

The interest of these two processes for the employee, is to obtain the judge that judges the rupture in unfair dismissal with profit of the damages of rupture (notice period, paid holidays, dismissal indemnity) and the damages for unfair dismissal.

The effects of judicial termination are different from those of taking action.

In both cases, there must be a serious breach (faute grave) of the employer.

1) The judicial termination (résiliation judiciaire) of the employment contract with the employer

The employee asks the judge to pronounce the termination of the employment contract to the exclusive tenets of the employer.

But the employer's failings must be serious enough.

The appreciation of this gravity is the sovereign power of the judges of the merits.

Is regarded as a sufficiently serious breach: non-compliance with the obligation to pay wages, non-compliance with the rules applicable to the medical supervision of disabled workers, non-payment of overtime, in case of moral harassment Failure to respect the principle of equal work, equal pay, etc.

When the proof of the deficiencies is reported and they are sufficiently serious, the judicial termination is then pronounced with the wrongs of the employer and produces the effects of a dismissal without cause real and serious of the day where the judge pronounces it.

2) The act of breaking the employment (prise d’acte de rupture du contrat de travail) contract with the employer

It is a type of unilateral termination of the employment contract by the employee, a response to what he considers to be an employer's breach of his contractual obligations.

These must generally be sufficiently serious breaches by the employer.

The act of breaking act produces the effects of either dismissal without real and serious cause if the facts invoked by the employee justified it, or, in the opposite case, a resignation. If the employee has not given notice, when taking action, he may be ordered to owe the employer damages in the amount of the notice.

The employee takes the initiative to terminate his employment contract, but intends to blame the employer for the breach. No formalism is required; however, we strongly recommend doing so by registered letter (LRAR).

The employee cannot retract from his act.

3) The Differences Between Judicial Termination and taking act of rupture

On the one hand, the employment contract is broken immediately when the contract of employment is terminated. Taking action is very risky and dangerous for the employee; it requires that he has already found a job because the employee who takes note will not receive unemployment benefits.

On the other hand, the employee who terminates his employment contract will continue to work while awaiting the judge's decision. On the other hand, the employee who initiates an action in judicial termination, must wait for the decision of the judge to know if the contract of employment will be broken or not.

In both cases (taking action or termination), if it is justified that is to say in case of sufficiently serious fault of the employer (faute grave), the employee will receive severance pay and damages for unfair dismissal.

Frédéric CHHUM, avocat and Member of the Paris Bar Council (Conseil de l’ordre des avocats de Paris)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

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

Par frederic.chhum le 23/08/19
Dernier commentaire ajouté il y a 3 semaines 3 jours

CHHUM AVOCATS (Paris, Nantes, Lille) a publié 4 articles sur la réforme de l’assurance chômage suite aux décrets du 26 juillet 2019.

La réforme entrera en vigueur au 1er novembre 2019.

Cliquez sur le lien internet ci-dessous pour lire (ou relire) les articles.

1) Réforme de l’assurance chômage : les nouvelles règles après le décret n° 2019-797 du 26 juillet 2019 (I).

 

https://www.village-justice.com/articles/reforme-assurance-chomage-les-nouvelles-regles-apres-decret-2019-797-juillet,32161.html#IUcr5kRtqIwWSHr1.99

2) Décret n° 2019-797 du 26 juillet 2019 : les mesures favorisant le retour à l’emploi et la sécurisation des parcours professionnels (II).
https://www.village-justice.com/articles/decret-2019-797-juillet-2019-relatif-regime-assurance-chomage-les-mesures,32170.html#X4xl2cpDJYIw1eXI.99

3) Décret n° 2019-797 du 26 juillet 2019 relatif au régime d’assurance chômage : les contributions générales (III).

 https://www.village-justice.com/articles/decret-2019-797-juillet-2019-relatif-regime-assurance-chomage-les-contributions,32187.html#XvsJMp3lk2lfUElZ.99

4) Chômage des salariés démissionnaires et travailleurs indépendants : les nouvelles règles après les décrets du 26 juillet 2019 (IV).

https://www.village-justice.com/articles/decrets-2019-796-no2019-797-juillet-2019-indemnisation-des-salaries,32203.html#uD7kucPmYgbiLJX4.99

Frédéric CHHUM, avocat membre du conseil de l’ordre des avocats de Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

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

Par frederic.chhum le 23/08/19
Dernier commentaire ajouté il y a 3 semaines 3 jours

During this training on the theme of Equality Women / Men: how to put it in place in the company? intervened: Maître Frédéric CHHUM, Maître Marilou OLLIVIER, Marion SIMONE (Student Lawyer), Emmanuel LUGUET (labor inspector) and Slimane LAOUFI (Chef de Pole, Defender of Rights (défenseur des droits)).

***

PowerPoint can be downloaded from the pdf below.

 

Frédéric CHHUM, avocat et member of the Paris Bar Council (conseil de l’ordre)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

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

Par frederic.chhum le 23/08/19
Dernier commentaire ajouté il y a 3 semaines 3 jours

Le Cabinet Frédéric CHHUM AVOCATS a organisé le 3 juillet 2019 au Campus 2019 des avocats du barreau de Paris une formation sur le thème Egalité Femmes / Hommes : comment la mettre en place dans l’entreprise ?

Lors de cette formation, sont intervenus, Maître Frédéric CHHUM, Maître Marilou OLLIVIER, Marion SIMONE (élève Avocat), Emmanuel LUGUET (inspecteur du travail) et Slimane LAOUFI (Chef de Pole, Défenseur des droits).

***

Après les entreprises de plus de 1.000 salariés, ce sont désormais les entreprises dont l’effectif est compris entre 251 et 1.000 salariés qui doivent publier leur index sur l’égalité femmes/hommes au plus tard le 1er septembre 2019 (art. 4 décret n° 2019-15 du 8 janvier 2019).

***

Le PowerPoint de la formation est téléchargeable dans le pdf ci-dessous.

Frédéric CHHUM, avocat membre du conseil de l’ordre des avocats de Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

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

Par frederic.chhum le 22/08/19
Dernier commentaire ajouté il y a 3 semaines 4 jours

In a decision of May 29, 2019 (No. 18-16183), the Court of Cassation ruled that an heart attack occurring on arrival in the company should be considered as an accident at work, despite the presence of prior symptoms when the journey from home to work.

1) Background.

According to Article L411-1 of the Social Security Code, an accident at work is an accident "caused by the fact or on the occasion of work".

This implies that the accident occurred while the employee was under the authority of the employer.

Thus, once the accident occurred at the time and place of work, the employee benefits from a presumption of liability for the accident at work.

In this case, the difficulty was that the symptoms of discomfort had arisen prior to the entry of the employee into the company. There was therefore the question of the application of the presumption of imputability.

2) Facts and procedure.

In the present case, an employee had died of a heart attack while he had just arrived at his place of work.

The employer however disputed the assumption of responsibility of the accident under the professional legislation.

Disappointed by the Bordeaux Court of Appeal, he appealed on points of law.

In support of his appeal, the appellant argued that the presumption of liability for the accident at work was not applicable to the case at hand for two reasons:

• the injury did not occur suddenly at the time and place of work, the first symptoms being felt before the arrival of the employee in the company;

• the employee was not under his authority at the time of the accident, since he had gone directly to the break room and had not started his work.

It was necessary to show that the discomfort felt by the employee was not an accident at work but rather a commuting accident, a situation more favorable for the employer.

3) Solution of the Court of Cassation.

The High Court dismisses the arguments raised by the applicant and has concluded that it is possible to rely on the presumption of imputability of the accident at work.

The Court of Cassation has indeed held that the accident had occurred at the time and place of work.

The employee "took his position even though he did not go immediately to the store" and was therefore under the authority of the employer at the time of the accident.

The meeting of these two elements (occurrence of the accident at the time and place of work, under the authority of the employer) authorizes the Court of Cassation to retain the professional nature of the accident.

She thus deduced that "the existence of symptoms prior to discomfort during the journey between home and the workplace is not likely to characterize a commuting accident".

To read the Article, please click on the link below

https://www.village-justice.com/articles/infarctus-survenu-arrivee-dans-entreprise-malgre-existence-symptomes-prealables,32127.html#7xqDdMlDdJoZQrom.99

c. cass. May 29, 2019, No. 18-16183

https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000038629485

 

Frédéric CHHUM, avocat and Member of the Paris Bar Council (Conseil de l’ordre des avocats de Paris)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

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

Par frederic.chhum le 22/08/19
Dernier commentaire ajouté il y a 3 semaines 4 jours

 

1) Faits et procédure.

En l’espèce, un salarié était décédé d’un infarctus alors qu’il venait d’arriver sur son lieu de travail.

L’employeur contestait cependant la prise en charge de l’accident au titre de la législation professionnelle.

Débouté de sa demande par la Cour d’appel de Bordeaux, il s’est pourvu en cassation.

À l’appui de son pourvoi, le requérant soutenait que la présomption d’imputabilité de l’accident au travail ne trouvait pas à s’appliquer au cas de l’espèce, et ce pour deux raisons :

la lésion n’était pas survenue soudainement au temps et au lieu de travail, les premiers symptômes s’étant fait ressentir préalablement à l’arrivée du salarié dans l’entreprise ; le salarié n’était pas sous son autorité au moment de l’accident, puisqu’il s’était directement rendu en salle de pause et n’avait pas débuté son travail.

Il s’agissait de démontrer que le malaise subi par le salarié ne relevait pas d’un accident du travail mais plutôt d’un accident de trajet, une situation plus favorable pour l’employeur.

2) Solution de la Cour de cassation.

La Haute juridiction écarte les arguments soulevés par le requérant et a conclu à la possibilité de se prévaloir de la présomption d’imputabilité de l’accident au travail.

La Cour de cassation a en effet retenu que l’accident s’était bien produit au temps et au lieu de travail.

Le salarié avait « pris son poste même s’il ne s’était pas rendu immédiatement dans le magasin », et se trouvait par conséquent sous l’autorité de l’employeur au moment de l’accident.

La réunion de ces deux éléments (survenance de l’accident au temps et au lieu de travail, sous l’autorité de l’employeur) autorise la Cour de cassation à retenir le caractère professionnel de l’accident.

Elle en a ainsi déduit que « l’existence de symptômes préalables au malaise, pendant le trajet entre le domicile et le lieu de travail n’est pas de nature à caractériser un accident de trajet ».

Pour lire l’intégralité de la brève, cliquez sur le lien ci-dessous.

https://www.village-justice.com/articles/infarctus-survenu-arrivee-dans-entreprise-malgre-existence-symptomes-prealables,32127.html#7xqDdMlDdJoZQrom.99

Source

c. cass. 29 mai 2019, n°18-16183

https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000038629485

Frédéric CHHUM, avocat and Member of the Council of the Bar Association of Paris (member du conseil de l’ordre des avocats de Paris)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

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

Par frederic.chhum le 22/08/19
Dernier commentaire ajouté il y a 3 semaines 4 jours

The General Director of Labor (DGT) has communicated its instructions on the implementation of the gender equality index (index égalité femmes / hommes), in an instruction sent on 15 July 2019 to the labor inspection services.

As a reminder, the index set up by the law "Avenir professionnel" of September 5, 2018 makes it possible to evaluate the differences in remuneration within each company, with a view to reducing gender inequalities.

The purpose of the unpublished instruction is to assist companies in the implementation of the index and to guide inspection procedures.

According to the instruction, the controls will target, first and foremost, companies that have not published their index or that have not sent it to the administration, and then companies that score less than 75 points.

Companies with 1,000 employees or more should be considered first, since they have an obligation to publish their index since March 1, 2019.

Then follow smaller companies, which have a longer period to publish their index (September 1, 2019 for companies employing between 250 and 1,000 employees, March 1, 2020 for companies employing between 50 and 250 employees) .

The goal given to labor inspectors is to examine 7,000 companies in 2019, and all enterprises with at least 50 employees by 2022.

Regarding the penalties incurred, companies that have not published the index or whose score is less than 75 points risk a financial penalty, calculated on the basis of the activity income of the following whole month (R. 2242-7 C.trav).

An employer who fails to take corrective measures or who is taking improperly correct corrective measures is liable to the same penalty.

The instruction specifies that persisting not to publish the exact note will be worth the absence of publication of the index.

Lastly, it adds that the failure of the employer to transmit data relating to his index is "capable of constituting an obstacle to the performance of the duties of a screening officer who is punished by imprisonment for one year and a fine of € 37,500 ".

https://www.village-justice.com/articles/index-egalite-femmes-hommes-dgt-donne-des-consignes-controle-aux-inspecteurs,32212.html

Frédéric CHHUM, Avocat and member of the Council of the Paris Bar

Nina BOUILLON

CHHUM AVOCATS (Paris, Nantes, Lille)

www.chhum-avocats.fr

Twitter: @fchhum

Par frederic.chhum le 24/07/19
Dernier commentaire ajouté il y a 1 mois 3 semaines

1) Facts and procedure

Mr. X was hired by IFOCOP as of October 7, 2010, as Training Manager, under three replacement CDDs without a definite term.

As of November 7, 2011, Mr. X was hired on a permanent contract.

On December 12, 2014, Mr. X appealed to the Labor Court of Paris in judicial termination of his employment contract arguing in particular the harassment of which he was victim as well as reminders of wages for overtime.

On November 20, 2015, Mr. X was fired for real and serious reasons.

By judgment of 6 April 2017, the Labor Court, in its tiebreaker, sentenced IFOCOP to pay Mr. X the sum of 4,000 euros as salary recalls, in addition to the sum of 400 euros for paid vacation leave.

Mr. X appealed this judgment.

2) The judgment of the Paris Court of Appeal of 2 July 2019

In its judgment of 2 July 2019, the Paris Court of Appeal:

- Confirms the judgment of the Labor Court in that it denied Mr X of his demands relating to the moral harassment and the obligation of security of result;

- Requalify Mr X's fixed-term contract of 1 August 2011 on a permanent contract;

- pronounces the judicial termination of the employment contract to the fault of the employer;

- Condemns IFOCOP to pay Mr X the following sums:

-2000 euros as requalification allowance;

-7,713.14 Euros as overtime reminders made between 7 October 2010 and 31 December 2014 plus 771.31 euros as paid leave;

-607.82 euros as compensation for compensation for compensatory rest in respect of 2011;

-250euros of damages for non-observance of the maximum daily working time;

-250euros of damages for non-compliance with the maximum weekly working time;

-250euros of damages for non-compliance with the periodic medical examination;

-10,000 euros as damages for dismissal without real and serious cause;

-13,490.10euros as compensation for concealed work;

- EUR 2,000 under Article 700 of the CPC.

- Recalls that the wage claims bear interest at the legal rate as from the receipt by the employer of his summons before the labor court while the indemnity claims bear interest at the legal rate starting from the decision by fixing everything at the times the principle and the amount.

- Orders the reimbursement by IFOCOP to Pôle Emploi of the unemployment benefits possibly paid to the employee since his dismissal within the limit of one month of indemnity.

3) The Court of Appeal pronounces the judicial termination of Mr. X's employment contract with the wrongs of IFOCOP

3.1) On the request to requalify Mr. X's fixed-term contracts on CDI

Mr X requested the requalification of his replacement CDD on permanent contracts.

The Court of Appeal first held that Mr. X's claim was not time-barred.

Thus, the Court of Appeal recalls that Mr. Z appealed to the industrial tribunal and filed his request for requalification on December 12, 2014, after the entry into force of the new law.

At the date of the promulgation of the new law, that is to say on June 17, 2013, the five-year prescription on the request for requalification of its fixed-term contracts concluded between 2010 and 2011 was not acquired, so that the new deadline of 2 years began to run on that date without, however, that the total duration of the prescription could exceed the five-year period provided for by the previous law.

It follows that the employee's requests for re-qualification of fixed-term employment contracts concluded as of October 7, 2010 expiring on May 14, 2011 and in payment of a requalification allowance are not prescribed because of the interruption. of the prescription by the referral, on December 12, 2014, of the industrial tribunal, and that consequently they are receivable.

Next, the Court of Appeal notes that Article L.1242-7 provides that when the fixed-term contract contains an imprecise term must be concluded for a minimum duration, failing which, the contract is deemed to have an indefinite duration.

In this case, the third fixed-term contract entered into by Mr X did not have a minimum duration so that the requalification of the contractual relationship was necessary.

3.2) Judicial termination of Mr X's employment contract with the exclusive wrongs of IFOCOP

a) On moral harassment (harcèlement moral)

The Court of Appeal first recalled that pursuant to Article L. 1152-1 of the Labor Code, no employee shall be subjected to repeated acts of moral harassment which have as their object or effect a deterioration of his or her working conditions that could affect his rights and dignity, alter his physical or mental health or jeopardize his professional future.

 

Under Article L1152-2 of the Labor Code, no employee may be sanctioned or dismissed for having suffered or refused to undergo acts of moral or sexual harassment, or for having testified of such facts or for having related them.

According to Article L. 1154-1 of the same Code, when a dispute concerning harassment arises, the employee establishes facts that make it possible to presume the existence of harassment and, in view of these elements, it belongs to the employee. employer to prove that such conduct does not constitute such harassment and that its decision is justified by objective factors unrelated to any harassment.

By application of article L1152-3, any decision or act contrary to the provisions of the aforementioned articles is void.

It is imposed on the employer by Article L1152-4 to take all necessary measures to prevent acts of moral harassment.

In addition, the employer, having an obligation of security of result towards his employees, must ensure its effectiveness in application of the provisions of Article L. 4121-1 of the Labor Code.

In this case, Mr X was giving the debates certificates describing a deleterious climate within the training center but also demonstrated that in a 2014 evaluation he had reported suffering at work.

Mr. X also denounced a letter of order to order that he considered unjustified, to have been removed from a promotion and put away in February 2015.

Lastly, Mr X was distributing medical certificates testifying to the deterioration of his state of health.

The Court of Appeal deduced from these elements, taken as a whole, that Mr. X established the materiality of precise and concordant facts in support of his claim.

Nonetheless, the Court of Appeal found that IFOCOP demonstrated that its decisions were justified by elements external to any moral harassment.

Thus, the Court of Appeal considers that the radically different management found by Mr. X in the two training centers to which he was assigned does not demonstrate how the working conditions were unbearable.

In addition, the trial judges found that the referral to the CHSCT for investigation was not late.

(b) Overtime payments, non-compliance with the annual overtime quota, and failure to work overtime

In support of his request for overtime, Mr X was in the discussion:

- a summary table of the overtime he claims to have performed;

-the IFOCOP's score sheets used as a basis for the above table, showing the arrival, break and departure times at the end of the day;

- testimonials from employees confirming Mr X's presence beyond working hours.

Also, the Court of Appeal considered that Mr. X produced preliminary elements that could be discussed by the employer and that are likely to support his request.

 

In response to these elements, IFOCOP observed that it had never given Mr. X permission to perform these overtime hours.

The Court of Appeal observes, however, that it is a right that the fact that the employee did not seek prior authorization from his management to work overtime, the existence of which the employer could not ignore, has no effect. the right of the person concerned to obtain the payment of overtime worked.

In the same way, it is accepted that the absence of prior authorization does not in itself exclude the tacit agreement of the employer, since it follows that the latter was informed by the time cards, hours employees who had not objected and therefore consented to their fulfillment.

In light of this, the Court of Appeal found that overtime was owed.

In addition to the payment of overtime, the Court of Appeal also ordered IFOCOP to pay compensation for non-compliance with the annual overtime quota and for non-compliance with the maximum legal daily and weekly working hours. .

c) IFOCOP's breaches of its salary obligations justify the judicial termination of Mr X's employment contract

The Court of Appeal therefore holds, in view of the foregoing, that the employer has repeatedly failed to comply with its salary obligations and in particular with respect to the payment of the share of wages represented by overtime or conventionally authorized quota for these overtime hours and to a lesser extent on the daily or maximum hours of work.

The Court of Appeal deduces that the employer has thus failed in its essential obligations inherent to the employment contract and that these failings were such as to prevent the continuation of the employment contract.

The Court of Appeal thus fixed the date of termination of the contract on the date of sending the letter of dismissal and sentenced IFOCOP to pay Mr. X the sum of 10,000 euros in damages for dismissal without cause real and serious.

(d) The allowance for covert work

 

Lastly, the Court of Appeal sentenced IFOCOP to a concealed work allowance, stating that because of the existence of the scorecards and the instructions given to the heads of departments on the respect of the hourly amplitudes, the employer could ignore the existence of the overtime worked.

In addition, the Court of Appeal notes that Mr. X's pay slips systematically mentioned a working time of 151.67 hours and that IFOCOP did not explain why overtime was not included in the notice. the pay slips.

(e) Damages for non-compliance with the provisions of the periodic medical examination

Mr. X argued that with the exception of the hiring medical examination in October 2010, he had only been summoned to one periodic medical examination on January 7, 2015.

 

IFOCOP replied that it was affiliated with a center of occupational medicine but that if Mr. X had not been convened it is because of its various mutations.

Article R.4624-10 of the Labor Code in its version applicable to the dispute provides that "the employee shall receive periodic medical examinations, at least every twenty-four months, by the occupational physician".

In this case, the employer does not submit the evidence required of him to have fulfilled this obligation, so that the breach is characterized, the employer having failed in his obligation of chief.

In the state of the explanations and the documents provided, the Court of Appeal considered that this lack of medical follow-up had caused the employee an injury that had to be compensated up to 250 euros.

Frédéric CHHUM, Avocat et membre du conseil de l’ordre des avocats de Paris

Camille Bonhoure, Avocat

CHHUM AVOCATS (Paris, Nantes, Lille)
email : chhum@chhum-avocats.com
www.chhum-avocats.fr
Twitter : @fchhum

Instagram : fredericchhum

 

 

Par frederic.chhum le 23/07/19
Dernier commentaire ajouté il y a 1 mois 3 semaines

"Whistleblowers often risk their careers and livelihoods, and in some cases, serious repercussions on their finances, health, reputation and personal lives. In order to prevent wrongdoing and to defend the public interest, it is essential to ensure that those who dare to speak are properly protected. "

This is stated by the European Commission in its communication of 23th April 2018.

What measures are in place to protect whistleblowers? Who are the people concerned by the protection regime? Can all secrets be revealed? What is the evolution of whistleblower protection?

It is to all these questions that we will try to answer.

1) The legal status of the whistleblower (lanceur d’alerte) and its framework of protections created by Sapin II law

Law 2016-1691 of December 9th, 2016, known as the "Sapin Law" created a status for whistleblowers and thus offered them a protective regime.

According to the Defender's annual report (https://www.defenseurdesdroits.fr/en/annual-reports/2019/03/annual-repor...), the Sapin law "has allowed the emergence of a awareness of the role that everyone can play in the development of reports and in the moralization of public life ".

1.1) The definition of the whistleblower according to Sapin II law

 Article 6 of the Sapin II law defines the whistleblower as follows: "A whistleblower is a natural person who reveals or reports, disinterestedly and in good faith, a crime or offense, a serious and manifest violation of an international commitment duly ratified or approved by France, a unilateral act of an international organization taken on the basis of such an undertaking, law or regulation, or a serious threat or harm to the public interest, of which it has been personally aware. "

1.2) The general device for protecting whistleblowers

1.2.1) Certain secrets are excluded from the alert regime

It is important to note that the law excludes from the scope of the operative part "Facts, information or documents, whatever their form or medium, covered by the secrecy of national defense, medical confidentiality or the secrecy of relations between a lawyer and his client are excluded from the alert regime defined by this chapter. "(Article 6).

1.2.2) The reporting procedure to be followed

The reporting procedure to be complied with is described in article 8 of the Sapin 2 law.

The procedure must be carried out:

- To the hierarchical superior, direct or indirect, of the employer or a referent designated by him;

- In some cases, by outside and casual collaborators.

1.2.3) What protection?

Whistleblowers are protected against professional retaliation and thus benefit from a reduction in the burden of proof.

They also benefit from the regime of criminal irresponsibility in the event that the report resulted in the violation of a protected secret.

In addition, their identity is kept strictly confidential: non-compliance with the obligation of confidentiality of their identity is penalized, as is the fact of hindering the reporting, in any way whatsoever.

Moreover, in case of abusive procedure for defamation, the civil fine is doubled.

2) The rights defender (Défenseur des droits) has a guiding and protective role for whistleblowers

According to article 5 ° of article 4 of the organic law n ° 2011-333 of March 29th, 2011, the defender of the rights is in charge to direct towards the competent authorities any person signaling an alert under the conditions fixed by the law, to ensure the rights and freedoms of this person by ensuring his protection.

It should be noted that the role of the defender of rights is neither to judge if the alert is well founded, nor to treat the alert, nor to stop the facts or acts denounced.

2.1) The whistleblower's mission

At first, the rights defender analyzes the facts evoked by the person wishing to launch an alert.

Then, it tells the whistleblower how to make its alert (for example, what is the administrative authority to enter).

If the facts that the person wishes to relate do not fall within the protection of whistleblowers, the defender of the rights, having an orientation mission, inform him.

As part of its orientation mission, the human rights defender has published a practical guide explaining the rights of whistleblowers. (Guide - orientation and protection of whistleblowers, https://defenseurdesdroits.fr/en/guides/guide-orientation-et-protection-...).

2.2) The protection mission of the whistleblower

The mission of the rights defender is to stop retaliation against the whistleblower, which would have appeared as a result of his report.

In order to carry out this mission, the defender of rights may, in particular, use his powers of investigation as well as specific powers regarding the adjustment of the burden of proof.

3) The Legislative Millefeuille is a barrier to the effectiveness of an effective whistleblower and whistleblower

There are several legislative provisions regarding whistleblowers, in addition to the Sapin II law.

For example, the law of 27 March 2017 on the duty of vigilance of parent companies and corporate issuers that requires companies with at least 5,000 employees in France or 10,000 worldwide to establish a vigilance plan incorporating a mechanism alert or the Sarbanes-Oxley Act of 2002 which introduces other warning systems).

According to Jacques Toubon, defender of rights, there is a real "millefeuille des alerte" (Lamy Social Week, Nº 1862, May 20, 2019 - Is the "general" whistleblower protection regime the expression of a fundamental right ?).

As such, he asserts that there is a great need: "a review of the various whistleblower protection regimes with a view to making the legislation significantly more clear and operational".

According to him, "the simplification of the legislation and the security of the whistleblowers are indeed essential to create the conditions of an effective device of treatment of the reports and protection of their authors".

4) The adoption of a European directive on whistleblowers: towards an overall overhaul of French law?

On 16 April, the European Parliament adopted new whistleblower protection rules.

According to Pascale Lagesse, "the adoption of a European directive on the whistleblower could be the occasion of an overall overhaul of the French law of the alert which became more complex at high speed" (Social Week Lamy, Nº 1862, May 20, 2019 - Is the "general" whistleblower protection regime the expression of a fundamental right?

Indeed, the new text aims to encourage and protect the reporting of infringements of EU legislation.

Thus, the whistleblowers will have the choice between an internet report and an external report.

In addition, protective measures against reprisals by employers are put in place.

SOURCES:

- LAW n ° 2016-1691 of December 9th, 2016 relating to the transparency, the fight against the corruption and the modernization of the economic life

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000033558528&categorieLink id =

- Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee - Strengthening the protection of whistle-blowers at EU level - 23.4.2018 COM (2018) (http: //ec.europa .eu / transparency / regdoc / rep / 1/2018 / FR / COM-2018-214-F1-EN-MAIN-PART-1.PDF)

- Guide - orientation and protection of whistleblowers, https://defenseurdesdroits.fr/en/guides/guide-orientation-et-protection-des-lanceurs-dalerte

- Annual report of the defender of rights (https://www.defenseurdesdroits.fr/fr/rapports-annuels/2019/03/repport-annuel-dactivite-2018

Frédéric CHHUM, avocat and Member of the Council of the Bar Association of Paris (membre du conseil de l’ordre des avocats de Paris)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

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

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