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Paris (conseil des prud’hommes, section coaching, on march 28, 2018 at 14: 40.
Surrounded by two counselors and a counselor, the president asks for the counsel of Isabella, and to the lawyer of his ex-employer approach.
The president : “We listen to you.”
The lawyer Isabelle (1) : “We ask for 20 000 euros in damages and interest for dismissal without cause real and serious, 9 000 euros for running unfair of the labour contract on the part of the employer, the reimbursement of 144,40 € of expenses of a bailiff and a 3 600 euros to article 700.”
The president : “On the breach, the context…”
The lawyer Isabelle : “My client is a nursery nurse, a graduate, recruited on 12 march 2012 as the director of a crèche in the Fifteenth arrondissement of Paris. She works for a company that has 3 500 employees, hundreds of nurseries in France and made 112 million € (turnover). She manages an establishment in which employed 13 employees, she is full-time and key 2 879 euros gross.
Pregnant with a high risk pregnancy, she must stop several times on the 12 October to 11 November and from 13 to 20 December 2012. March 20, 2013, she applied for a parental leave and then a sabbatical leave, which stops the 3 November 2016.
But on October 25, 2016, a few days before his return, she receives a letter for an interview prior to dismissal. On 23 November, she is fired. So what is this procedure curious of dismissal on the eve of a return from sabbatical leave and what is the reason for the dismissal ?”
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The president : “We are indeed curious to hear the arguments of both sides, master !”
The lawyer Isabelle : “On September 29, 2016, my client receives an email from the HR to schedule an interview on 10 October to 14 “in order to organize at best your recovery.” She went there and, on 11 October, she wrote an e-mail summary to his superiors, saying that she has noted that none of the jobs, for the moment, has not been proposed.
on The 13th of October, the HR director replied : “I have noted that you were ready to make replacements… I will not fail to come back to you”. My client is reassured, she is ready to work out.
On 20 October, she does not always see anything coming. However, the staff representative told him that there was a position of director in the Hauts de Seine (92), announcement is confirmed on the website. On 25 October, the position is still vacant, the delegate of the staff confirms it. My client expressed his interest for this position to the HR department, in any point identical to the one she held and for which she was recruited. She puts it in the loop of the labour inspector, a bailiff, for he carries his letter of nomination… I’ll get to that later.
But it also sends a mail to the HR department at 13h54 and, at 13h59, she receives the e-mail in return, which formalizes the invitation to interview prior to a dismissal, and which will be confirmed by a registered letter. You will agree that the chance of this alignment for time is more than troubling. Then my client alert illico labour inspection, who wrote : “one can only be surprised by this reversal of situation”.
Is this a disciplinary sanction ? Would this be related to the involvement in this case of the inspector of labour or the long absence of my client ? We would be on a ground of discrimination if we were to adopt the second solution. Anyway, it is a dismissal extremely traumatic that has been experienced by my client.”
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The president : “What’s the other party ?”
The lawyer of the employer : “the reason for dismissal is a failure professional. The company runs day nurseries, which accept children from a few months to entry into kindergarten. We are used to employees who take maternity leave and then parental. It is very classic, perfectly planned, the council will record that we have not dismissed light heartedly, as much as in the paris region alone has a shortage of auxiliaries in early childhood, and that madame had all the degrees.”
The president : “On what do you base the pattern of incompetence ?”
The lawyer Isabelle : “When the labour inspector is amazed at this call for preliminary interview, the HR department sends him amazing responses. Roomy, surreal. It indicates that prior to her maternity leave, on April 13, 2013, my client “had been the subject of serious gaps.” This argument cannot be taken seriously by your board, I remain convinced that the presence of the labour inspector has earned him this disciplinary sanction.”
The president : “grievances are they mentioned on the letter of dismissal ?”
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The lawyer Isabelle : “Yes, five complaints against it. I remind you that she worked from 12 march 2012 and stopped on march 13, 2013, so she has actually been a year of presence. All grievances will from August to December 2012. One advance of incompetence over four months, during which time she has had absences related to her pregnancy. Curiously, no criticism has been made at the time. During its trial period, it has an exceptional bonus which amounted to 12 % of his salary, another bonus is granted at the end of November. And we are told that in a few months, she accumulated incompetence.”
The president (counsel for the employer) : “you, master.”
The lawyer of the employer : “as Soon as his or her hiring, ms. has received training particularly in the field of reception of the parents. She is the director, of course, but with different caps. We find that it has not been able to perform its missions. It has, however, been followed by a coordinator, early childhood using the guidelines of the nursery. On August 29, 2012, on his crib, we received with surprise a complaint of the ministry of Foreign Affairs, which had reserved 20 the cradles and the seats were given to other companies.”
The lawyer Isabelle : “This is not she who has undergone this contract, it manages to another level ! Second complaint, he was accused of a problem of cooling down for several weeks. It follows the procedure and uses the general services of the registered office of the company. It restarts every day. Nothing.”
The lawyer of the employer : “We do not reproach him for not having called for repairs, he is accused of failing to inform the parents, stating that the company was going to compensate for the faster to the inconvenience.”
The lawyer Isabelle : “the Third grievance, on October 23, 2012, she was not welcomed Gaspard. Ah, the dad of Gaspard… The father of Gaspard wants the head of the director-and he gets it ! How many parts for this case ? I do not know. She is the director of the home is not its function. It has 13 employees under his orders who do and if there is a concern, it is the rule. “
The lawyer of the employer : “It is false. Don’t laugh, brother. All parents can understand.”
The lawyer Isabelle (the cup) : “This is not the problem, but this non-event you pull a wire and make a chart, apocalyptic !”
The lawyer of the employer : “one of The fathers of children and youngsters has repeatedly expressed its displeasure, but it is not the only one. I quote you one of the mails received by the executive officer : “the general atmosphere of the nursery has changed a lot with the arrival of the new director. The latter seems to be much less involved than the previous one, in spite of his affable character…””
The lawyer Isabelle : “So if the parents ask the head of the director of the nursery, it grants them. Another example : a child bites another and the director is fired. Except that on this day, she wasn’t there.”
The lawyer of the employer : “You told him and he repeats that he must share with the parents, this is part of his work. But his organization is not consistent. As a director, she must work at the improvement of the situation…”
The lawyer Isabelle : “Fourth complaint : she would have organized a safety drill on 27 September and not 19 as originally planned. What gravity !”
The lawyer of the employer : “It is in a manger, the rules are very strict. This is not particularly consistent in terms of fire safety.”
The lawyer Isabelle : “Fifth complaint : the food hygiene. She ordered the meal to the plant, the supplier that we had imposed.”
The lawyer of the employer : “It allows you to engage with its staff to apply its own standards. And it is not even able to remove the leftover taste on the mouth of a child whom she holds by the hand.”
The lawyer Isabelle : “We reproach him for all the malfunctions of the crib, she is not responsible, nor guilty, and has not been sanctioned in 2013. These potential objections are prescribed in 2016. “
The lawyer of the employer : “It does not meet its missions. It sets targets in five points and the form again on the plan of hygiene and security. Everything is done until the end of January 2013.
parents want to her replacement, the company leaves him with more time. But it does nothing, the parents are reinstalled. We are conducting a true reflection on the fact of keeping or not on the job and, finally, 25 January 2013, we propose to him another nursery, it is smaller. A few days after she goes on maternity leave.
In 2016, the process of recovery is done at the headquarters level. We find in his case the risk to the organization of the nursery in his previous job. There is no fault but of the gaps, so no statute of limitations and the facts of 2013 can be considered. “
The president : “On the bailiff’s fees ?”
The lawyer Isabelle : “When she applied for her return from sabbatical leave in the new crib, the director was not present. The bailiff came up : undeliverable mail.”
The president : “there was a person ?”
The lawyer of the employer : “No.”
The president : “And you have not repaid?”
The lawyer of the employer : “No.”
A counselor : “What is his current situation ?”
The lawyer Isabelle : “She is the director of the nursery.”
15.25. The president : “Thank you. Delivered on the 12th of July.”
Verdict. The company is ordered to pay to Isabelle 144,40 € bailiff costs. The employee is denied the rest of its applications
Facts prescribed and parental leave : what the law says
No fault can be sanctioned more than two months after the employer had knowledge. This means that even if the employee is off work due to sickness or parental leave, the employer has the possibility to punish (Court of cassation, 26 may 2006, n° of appeal 02-40681).
Contrary to popular belief, the dismissal is allowed during a stoppage in disease. There are only the disease as a reason that may not constitute a cause for dismissal. The employee may request a postponement of his interview and the employer is obliged to take account of the situation of the employee and do not have “malicious intent” (Court of cassation, 1 February 2001, appeal no. 98-45.784).
In the case of Isabelle, it enjoyed special protection during her pregnancy on the basis of article L1225-4 of the labour code, preventing any of the procedures in dismissal for cause real and serious.
(1) The name was changed.
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Carnets de prud’hommes
“Is it acceptable for a “darling” is better paid?” “She says her pregnancy 10 days after having been transferred” “We put your stuff in a cardboard box, password recover,”
As Isabelle has chosen to take a parental leave and then a sabbatical, the employer decided to break the contract of employment at his return. The board has followed on this procedure.
(1) The name was changed.
