In a judgment of January 20th, 2022 (n°20/00304), the Labor Court of Nantes deems null the dismissal for incapacity of an employee, responsible for purchases, who suffered sexual harassment by affirming that "the inappropriate gestures and the insistence of Mr. W, while Mrs. O refused to have sexual relations with him, on several occasions, are constitutive of repeated and non-consensual actions which led to a growing discomfort and to Mrs. Oh”.
The employee, purchasing manager, appealed the judgment of the Nantes industrial tribunal.
On January 20, 2022, the Labor Court (conseil de prud’hommes) of Nantes, by contradictory judgment:
- Holds that the dismissal for medical incapacity of Mrs. O is null and void due to the sexual harassment suffered and insufficient management of the situation by the employer;
- Consequently, orders SA ENGIE ENERGIE SERVICES to pay Mrs. O the following sums: o 12,816.96 euros gross as compensation for notice;
o 1,281.69 euros gross for related paid leave; o 30,000 euros net as compensation for null dismissal; o 1,700 euros gross as a variable bonus reminder for the year 2019; o 170 euros gross for paid leave; o 1,500 euros as compensation on the basis of article 700 of the Code of Civil Procedure; Said sums being accompanied by interest at the legal rate from the date of the referral to the Board, i.e. April 30, 2020, for sums of a salary nature and of the notification of this judgment for those of a compensatory nature, the interest producing them- same interest in accordance with article 1343-2 of the Civil Code;
- Orders the delivery to Mrs. O of a pay slip summarizing the sums due and a corrected Pôle emploi certificate, all documents in accordance with this judgment, and this under provisional penalty of 50 euros per day of delay from the 15th day and until the 45th day following notification of this judgment;
- Says that the Labor Court expressly reserves the power to liquidate this provisional penalty, charging the interested party to submit the request to the registry;
- Limits the provisional execution of this judgment to the provisional execution of law defined in Article R. 1454-8 of the Labor Code and, for this purpose, sets the average monthly salary of reference at 4,272.32 euros; - Dismisses Mrs. O of her other claims;
- Dismisses SA ENGIE ENERGIE SERVICES of its counterclaim under Article 700 of the Code of Civil Procedure; - Orders SA ENGIE ENERGIE SERVICES to pay any costs.
In total, Mrs. O obtains the sum of 47,468.65 euros.
The employee appealed the judgment.
Facts and procedure
Ms. O joined ENGIE ENERGIE SERVICES as a purchasing manager at the Puteaux site under a permanent contract signed on April 27, 2015.
In December 2017, Mrs. O joined ELECTRABEL, a subsidiary of ENGIE, then on June 1, 2018, she joined the West Central Regional Department of ENGIE ENERGIE SERVICES in Noyal Châtillon, as purchasing manager.
During a manager seminar on June 21 and 22, 2018, Mr. W, sales manager, broke into Mrs. O's hotel room and tried to spend the night with her.
Mrs. O rejects Mr. W and refuses his advances.
Mr. W leaves the room.
There followed exchanges by SMS, which Mr. W initiated, until July 31, 2018, in which Mr. W insisted with Mrs. O and tried again to achieve his ends.
Madame O constantly opposes him with a refusal to go further with him.
Mrs O, experiencing the situation very badly, informed her supervisor, Mr T, at the end of September 2018, of the sexual and moral harassment that she said she had suffered from Mr W since the night of June 21 to 22, 2018, during the seminar manager.
On November 27, 2018, Mrs O was placed on sick leave until January 2, 2019, then returned to work.
On February 25, 2019, Mr. C, functional manager of Mrs. O, launches bi-monthly invitations, called points commerce purchases, between Mr. W and Mrs. O.
These meetings are scheduled for February 25, 2019, March 11, 2019 and March 25, 2019.
Despite Mrs. O's objection, the first two points were maintained by Mr. C and took place in his presence.
On March 4th, 2019, Mrs O received from Mr T, her line manager, a proposed meeting, shared with Mr N, the HR manager of the Brittany branch, to take stock of the situation and discuss a conventional termination request from Mrs O.
On March 12th, 2019, an interview took place with Mrs O, her line manager, Mr T and Mr N, the HR manager of the Brittany agency.
On March 28th, 2019, Mrs O met with occupational medicine to tell her about her discomfort.
The occupational physician recommends the implementation of teleworking for Mrs. O, on a temporary basis.
On the same date, Mrs O contacted the members of the CHSCT to inform them of the situation and of her discomfort.
On March 29, 2019, ENGIE's Western Territory HRD wrote to Mrs O to follow up on the interview of March 12, 2019.
He is surprised to be informed of the facts late in relation to their date of occurrence, he informs that several actions have been carried out, that Mr. T has been approached and that Mr. W has been received.
Mr H explains that he is unable to characterize the situation and renews his request for communication of the documents demonstrating the reality of the facts.
On March 30, 2019, Mrs O wrote to the General Management of ENGIE ENERGIE SERVICE and to the Ille et Vilaine Labor Inspectorate to tell them the facts.
On April 2, 2019, the members of the CHSCT received, on the one hand, Mrs. O to listen to her and, on the other hand, contacted Mr. C, the Director of the Brittany agency, to whom they expressed their astonishment at not having been warned earlier.
On April 3, 2019, the members of the CHSCT had a telephone interview with Mr R, HRD ENGIE France and ethics officer, who informed them of the process of meeting the two protagonists of the case and of Mrs O's work stoppage.
On April 3, 2019, Mrs O was placed on sick leave, until September 3, 2019.
On April 5, 2019, the CHSCT issues a right of alert, considering that Mrs. O is incurring psychosocial risks that risk harming her health.
This right to alert is recorded on the same day in the register of serious and imminent dangers by the territory's health and safety coordinator.
On April 9, the Labor Inspectorate contacted the members of the CHSCT.
On April 10, Mrs O was received by Mr R, HRD ENGIE France and ethics officer.
On April 11, Mrs O informed the Labor Inspectorate that she had been received by Mr R.
On April 17, Mr W was received by Mr R to get his version of the facts.
The elected CHSCTs convene an extraordinary CHSCT on April 25, 2019, during which they regret having been informed late, they are surprised that Mr. H did not understand the reason for convening this extraordinary CHSCT, in view of the situation known to all.
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Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Annaelle ZERBIB Juriste M2 DPRT Paris Saclay
Bar Council (2019-2021 term)
Annaelle ZERBIB Lawyer M2 DPRT Paris Saclay
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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