By a judgment rendered on July 7, 2021 (n ° 19-25754), the social chamber of the Court of Cassation ruled on the employee's freedom to denounce facts constituting an offense or a crime of which he would have had knowledge in the performance of his duties.
A dismissal pronounced following the exercise of this right, is null.
However, the employer can order dismissal for another reason, in order to circumvent the penalty of nullity.
In this way, on the basis of Article 10§1 of the Convention for the Protection of Human Rights and Fundamental Freedoms which protects the freedom of expression of employees, the Court of Cassation ruled that the trial judges not only had to examine the employee's letter of denunciation sent to his management after he had been called to an interview prior to dismissal, but all the elements allowing it to be assumed that the employee had related or testified in good faith to the facts such as to characterize an offense or a crime.
An employee was hired on September 1, 2008 by the Vosges Association for the Protection of Children, Adolescents and Adults (AVSEA), as director of the guardianship service.
Having knowledge of facts that he considered unlawful, the employee communicated them to his management under his right of alert protected by freedom of expression.
However, on November 14, 2012, the employee was laid off on a precautionary basis and was simultaneously summoned to an interview prior to dismissal.
In response to this, six days later, on November 20, 2012, the employee denounced in a letter addressed to the supervisory body of the employer, numerous criminally reprehensible acts allegedly committed by the association.
These denunciations, however, did not prevent the dismissal of the employee, not for disciplinary reasons, but for professional incompetence, on December 3, 2012.
The employee therefore seized the industrial tribunal for the purpose of contesting his dismissal and requesting its nullity, believing that he was motivated not for his alleged professional incompetence, but by the exercise of his right to alert.
But, in a judgment of October 31, 2018, the Nancy Court of Appeal rejected the employee's requests for the nullity of his dismissal, his reinstatement and the payment of subsequent sums.
Indeed, the Court of Appeal did not consider the dismissal null, having mainly retained the fact that the letter of denunciation sent by the employee to the supervisory body of the employer, was subsequent to his summons to the 'interview prior to dismissal, and that the concomitance of these two events is not sufficient to establish the misuse of the procedure according to which, when the employee presents factual elements which make it possible to presume that he has related or testified based on the facts constituting an offense or a crime, it is up to the employer to provide proof that his decision to dismiss is justified by objective elements unrelated to any desire to penalize the exercise by the employee of his freedom expression.
The Court of Appeal, however, ruled the dismissal without real and serious cause, as the employee's professional incompetence had not been characterized.
It was then that the employee appealed to the Supreme Court on the basis of Article 10 §1 of the Convention for the Protection of Human Rights and Fundamental Freedoms which provides that "Everyone has the right to freedom of 'expression. This right includes the freedom of opinion and the freedom to receive or impart information or ideas without interference from public authorities and regardless of frontiers ".
The employee complains that the judgment of the Court of Appeal rejects his requests relating to the declaration of the nullity of his dismissal.
In this regard, the appellant first recalls the right for employees to report unlawful conduct or acts observed by them in their workplace.
By that, it is established according to the applicant, that "the dismissal of an employee intervened for having related or testified, in good faith, of facts of which he had knowledge in the exercise of his functions and which, if they were established, would be such as to characterize criminal offenses, is null and void ”.
Likewise, the employee maintains that the employer is required to provide proof that his decision to dismiss is justified by objective elements unrelated to any desire to sanction the exercise, by the employee, of his right to report conduct or acts. unlawful, when the latter presents factual elements which allow it to be presumed that he has related or testified in good faith to facts constituting an offense or a crime.
3) The sending after the invitation to an interview prior to dismissal, of a letter denouncing facts deemed unlawful, can it justify non-compliance with the procedure according to which the employer must provide proof that his decision to dismiss is foreign to any desire to sanction the exercise by the employee of his right to report illegal conduct or acts? No, answers the Court of Cassation.
The Court of Cassation answered in the negative and quashed and annulled the judgment of the Court of Appeal on the basis of Article 10§1 of the Convention for the Protection of Human Rights and Fundamental Freedoms cited above.
The Court of Cassation accuses the Court of Appeal of having declared the request for the nullity of the employee's dismissal admissible but ill-founded, and of having consequently rejected his requests for reinstatement and various sums relating to the nullity.
Indeed, the social chamber underlines that the court of appeal should have investigated whether the employee "who claimed to have prior to his summons to a preliminary interview informed his hierarchy of the facts which he considered unlawful and of his intention to report to the competent authorities, did not present any factual elements allowing it to be presumed that he had related or testified in good faith to facts which, if they were established, would be of a nature to characterize criminal offenses, and if the employer then reported proof that the dismissal was justified by objective elements unrelated to the statement or testimony of the person concerned. "
In this way, the solution rendered by the Court of Cassation insists more on all the facts reported by the employee which support his accusations, than on the only letter of denunciation whether it was sent to the employer subsequently or not, interview prior to dismissal.
Because, as recalled by the Court of Cassation, “the dismissal of an employee pronounced for having related or testified, in good faith, of facts of which he was aware in the exercise of his functions and which, if they were established , would be such as to characterize criminal offenses, is null and void ”.
And, in this case, not only was the letter of denunciation concomitant with the interview prior to dismissal, but there were also other facts put forward by the employee beforehand, in addition to the fact that the previous concomitance revealed that the dismissal was in fact motivated by this denunciation.
Thus, this solution is favorable to employees in that it guarantees them the exercise of their fundamental right of freedom of expression, against all attempts by the employer to circumvent, which thus allows them to denounce facts which appear to them. illegal.
- c.cass., July 7, 2021, n ° 19-25754
Frédéric CHHUM, Avocat à la Cour et Membre du Conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Sarah BOUSCHBACHER juriste
CHHUM AVOCATS (Paris, Nantes, Lille)
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