In a judgment of October 10th, 2023, the Paris Administrative Court confirms the refusal of authorization to dismiss a manager who is a member of the CSE.
1. Company Y, on December 3, 2021, submitted a request to the labor inspectorate for authorization of dismissal for disciplinary reasons of Mr. site, and also exercising the mandate of full member of the social and economic committee.
By a decision of February 8, 2022, the labor inspector refused the dismissal of the employee. By letter dated March 24, 2022, receipt of which was acknowledged on the following March 28, company Y filed a hierarchical appeal against this decision before the Minister of Labor, Employment and Integration.
The silence kept by the Minister on this appeal gave rise to an implicit decision of rejection on July 28, 2022. If, through this request, company Y requests the annulment of the decision of the Minister of Labor, its conclusions must be considered as also directed against the initial decision of the labor inspector of October 12, 2021.
On the conclusions for annulment:
2. Under the provisions of the labor code, in particular those of 1° and 2° of article L. 2411-1 and articles L. 2411-3 and L. 2411-5, the dismissal of employees legally invested with representative functions, in particular union delegates and elected members of the social and economic committee, who benefit from exceptional protection in the interest of all the workers they represent, can only intervene with authorization from the work inspector. When their dismissal is considered, it must not be related to the representative functions normally exercised or to their union membership.
3. In the event that the request for dismissal is motivated by misconduct, it is up to the labor inspector seized and, where appropriate, the competent minister, to investigate, under the supervision of the judge, the excess of power , if the facts alleged against the employee are sufficiently serious to justify dismissal, taking into account all the rules applicable to the employment contract of the person concerned and the requirements specific to the normal execution of the mandate with which he is entrusted .
4. In the present case, to request authorization to dismiss Mr. his team and the creation of a harmful climate, repeated humiliations towards the deputy site manager, unconditional support for an employee experiencing an alcoholism problem, the absence of guarantee of hygiene rules, a lack of transparency during the cancellation of a receipt, the lack of creation of a pool of extras, a rare presence within the establishment on weekends, long and imperfect administrative management and the absence of cleaning of a storage room.
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Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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