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Nanterre, the conseil des prud’hommes, section coaching, on June 18, 2018 at 10: 45 am
The president is surrounded by two counselors and a counselor. Two lawyers are in front of them.
The president : Your requests and the heads of demands ?
The lawyer Aline (1) : We ask the council the recognition of the average wage 7515,40 euros and unfair dismissal. Accordingly, we call 22 546,22 euros to pay in lieu of notice, three months of pay with 2254,62 euros of paid leave related, 3507,18 euros of conventional compensation for dismissal, 67 668 euros as compensation for termination without cause real and serious, 10 000 euros for procedure of dismissal vexatious, 11 788,55 euros callback pay because my client was not an executive and had to receive 30 days of RTT, 10 000 euros in damages and interest for violation of the legislation on working time, 45 092,40 euros flat-rate compensation for work hidden and 2500 euros to article 700.
The president : A counterclaim ?
The counsel for the employer : 4000 euros to article 700.
The president : We listen to you.
The lawyer Aline : My client has been started on October 11, 2014 as a manager in a company engaged in wholesale trade in the food sector and that includes over 1,000 employees. It is paid 5000 euros per month with a bonus. She was running five to six employees in the warehouses, depending on the needs. She fully gave satisfaction to his company and he acknowledged the rigour and seriousness.
But suddenly, on January 6, 2017, it shall deliver the notice of the interview prior to dismissal and asked to take his business in front of everyone. The interview is conducted the 16. On January 25, 2017, she is dismissed for serious misconduct, without a layoff.
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She receives a very long letter of dismissal, without actual evidence. It seems to reproach him with his attitude with one of his subordinates. He is not happy that my client does not help to get a promotion in another department. Finally, he was able to get it. Where is the problem ?
It is criticized also their methods of management. Sacked for “lack of patience, lack of kindness, too brittle”. The employer asks the employees to testify against her moral harassment that they have suffered. No evidence is established.
The counsel for the employer : It is a German group which has warehouses all over France, with a pyramidal organization, and a lot of handlers. Recruited in 2014, your client is already receiving the June 16, 2015 a call to order for words incorrect vis-à-vis employees. She has a duty to set an example, and it reminds him.
In January 2017, it is revoked. In law, it is a serious fault. It is impossible to keep it at its work station. The employer has the obligation to preserve the physical and mental health of the other employees. However, this employee was responsible for the internal audit. She was there to ensure the control and had a very strong connection with Germany. But she adopts a posture hurtful, extremely brittle, vis-à-vis other employees.
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“I’ve been in a car accident related to my suffering at work”, writes one of them. The employees are a part of their ill-being, the frames show that it’s not going to. People in the business, who are left, testify in the same direction. “I was very uncomfortable when I saw X happen do him”. “In 24 years, this is the first time that I am being scolded”. “She was, once again, humiliated in front of everyone. She told him that he has to work a little because it does nothing”. “When we try to explain, it starts with : ‘You cuts a ton’.”
The lawyer Aline : She was disciplined and worked with discernment. She said frankly things.
The counsel for the employer : Highly virulent, it is hard to contain. She has dealt with a provider of “asshole” in public, shocking the other employees. The person who has had a car accident came in the morning with “tears in his eyes and a sore belly”. Frankly, the atmosphere is relaxed, when your client is a party. About six employees in this department, I have six certificates consistent.
The lawyer Aline : Three or four people have succeeded in the past on the post and it remained two and a half years. She has had problems with those who had the most seniority and had found it difficult to be accountable to an employee younger than them. Some of them were taking liberties, it was in his role by calling them to order. If others have resigned, is that they wanted to see elsewhere. There has been no investigation, it is defended tooth and nail about his work, but he was not listened to.
The president (counsel for the employer) : Why are there no layoffs, when you consider that there is a serious fault ?
The counsel for the employer : We have chosen to provide it to work with maintenance of salary…
The lawyer Aline (cutting) : By asking him to immediately leave the premises. This is totally vexatious.
The president : On your other requests ?
The lawyer Aline : She is not a senior officer (1). It must have real decision-making power, management, which is not the case. His compensation is important, but far from excessive. It does not form part of the steering committee.
The counsel for the employer : 20 years ago, we celebrated the 35 hours. At the time, we didn’t want to put the frames in the 35 hours and we invented the package-day. For those who management other senior executives, “executives”. They represent the tip of the pyramid and of course they are employees and that they should be accountable.
When it decides the penalty, the HR was his tool. This employee was an autonomous, independent, and had one of the remuneration of the highest levels of the company. She would often go a lot earlier on the Friday, we do it not complains. His variable compensation is impressive : 23 800 euros for 2016. In an email she tells herself : “My role as part-leader…”
The president : On the work hidden ?
The lawyer Aline : The employer applies the status of the executive officer to employees who are not. It distracts from the regulation.
The counsel for the employer : One speaks of the offense of illegal labour. It is necessary therefore, that there is an element of intent. This is not the case here, there is no element of intention, but of the good faith on the part of his employer.
11: 35 am. The chairman : Thank you. The debates are ended.
Verdict, on October 15. The council said that the serious misconduct is not established, but believes that the dismissal is based on an actual cause and serious. He sentenced the ex-employer of Aline pay him 22 546,62 euros in respect of pay in lieu of notice, 2254,66 euros of paid leave related, 3507,18 euros of conventional compensation for dismissal and 1200 euros to article 700.
Management and moral harassment : what the law says
The employer is subject to an obligation of physical and mental health since the law on social modernisation of 17 January 2002. Thus, article L 4121-1 of the labour code states that “the employer shall take the necessary measures to ensure the safety and protect the physical and mental health of workers”. If he does not, and if develops moral harassment, “fault inexcusable” of the employer may be invoked.
The Court of cassation has stated that the criticism of the activity of an employee in the terms humiliating in front of other employees is not only a fault but part of the moral harassment (July 8, 2009, appeal n° 08-41638).
She also has that “can characterize a bullying management methods implemented by a supervisor or manager as soon as they occur for an employee who is determined by the actions repeated with the purpose or effect of lead to the deterioration of working conditions likely to harm his rights and his dignity, affect his physical or mental health or compromise his professional future” (march 1, 2011, appeal n° 09-69616). In spite of a management system which is a little bright and certificates to support it, Aline, does not morally harassed other employees, concluded the council of prud’hommes.
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(1) “Are regarded as having the quality of senior executives which are entrusted responsibilities, the importance of which involves a great deal of independence in organizing their time, who are empowered to take decisions that are largely autonomous, and who receive remuneration falling within the highest levels of systems of compensation as practiced in their company or establishment” (article L 3111-2 of the labour code).
* The name has been changed.
