In case of dismissal following an internal investigation (enquête interne) in a company, the judge, seized of a challenge of its dismissal by an employee, cannot base its decision solely or decisively on anonymous testimony (temoignages anonymes).
To our knowledge, the decision of the Cour of cassation July 4th 2018 is unseen.
This judgment must be approved because it strengthens employees' rights of defence in case of dismissal following an internal investigation (enquête interne).
Mr. X was hired on March 1st, 2007 as an expert building buyer by SNCF mobilités.
On February 4th and 5th, 2013, the employee and Ms. Z ... approached SNCF's ethics department.
Following an internal investigation, the company notified the employee on September 18th, 2013 a suspension measure and summoned him to the Disciplinary Board.
He was dismissed on September 25th, 2013 for fault.
The employee was reproached for making racist remarks about a colleague of Muslim religion and insulting remarks about his hierarchy.
2) In case of an internal investigation, the judge cannot base his decision solely or decisively on anonymous testimony.
With regard to Article 6 §1 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in its decision of July 4th 2018, the Court of Cassation states that "the judge cannot base its decision solely on or in a decisive way on anonymous testimonies ".
Article 6 §1 of the ECHR provides that:
«In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. ".
Article 6 §3 of the ECHR provides that
“Everyone charged with a criminal offence has the following minimum rights:
a) To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b) To have adequate time and facilities for the preparation of his defence;
c) To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e) To have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
The Court of Cassation breaks the decision of the Rennes Court of Appeal which considered that the dismissal procedure is regular and the dismissal justified, having retained that "the infringement of the rights of the defense based on the anonymous character of the testimonials collected by the Ethic Committee is not justified to the extent that the employee had the opportunity to read and comment on them, relied decisively on the report of the Ethic Committee”.
The Court of Cassation breaks and annuls the decision of the Rennes Court of Appeal of March 17th 2017 in that it denied the employee's claim for damages for dismissal without cause real and serious ground.
The case is sent to the Angers Court of Appeal.
3) Contribution of the judgment of 4 July 2018.
In case of a dismissal, if a company conducts an internal investigation (enquête interne), employees who testify must be identifiable.
Otherwise, the dismissal may be invalidated because the evidence may be removed from the proceedings by the judge because of their anonymity.
In any case, the judge cannot base its decision solely or decisively on anonymous testimony.
This decision should be welcomed, which strengthens employees' rights of defense in the event of dismissal following an internal investigation (enquête interne).
· c. cass. 4 juillet 2018, n° 17-18.241 (M. X c/ établissement SNCF mobilités).
· Convention de sauvegarde des Droits de l’Homme et des Libertés fondamentales telle qu’amendée par les Protocoles n° 11 et n° 14.
Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)
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