Newsletter No. 141 - September 2020

Pursuant to the provisions of article L. 1471-1 of the Labor code, “any action relating to the performance of an employment contract is subject to a two-year statute of limitations starting on the day when the person exercising it became aware or should have become aware of the facts entitling them to exercise their right”. Article L. 3245-1 of the same code provides that “the action aiming at the payment or recovery of wages is subject to a three-year statute of limitations starting on the day when the person exercising it became aware or should have become aware of the facts entitling them to exercise it. The claim may relate to the sums payable in connection with the last three years as from this day or, if the employment contract has been terminated, to the sums payable in connection with the last three years prior to the contract termination”. In this case, on the occasion of his being made redundant on economic grounds, an employee requested the conversion of his part-time employment contract into a full-time employment contract. The trial judges dismissed his claim on the basis of article L. 1471-1 of the Labor code, considering that his action (relating to the performance of the employment contract) had become time-barred. The French Supreme Court (Cour de Cassation) quashed this decision on the grounds that “the action aiming at converting the employment contract into a full-time contract is an action aiming at the payment of wages which is subject to the statute of limitations provided for at article L. 3245-1 of the labor code” (Cass. Soc. 9 Sept. 2020, No. 18-24.831).

In a first case, a court of appeal had converted a dismissal for gross misconduct into a dismissal without real and serious cause, while noting that that the alleged facts were wrongful. The Cour de cassation states as a reminder that “regarding a dismissal decided on disciplinary grounds, if the letter of dismissal sets the scope of the dispute as to the allegations made against the employee and the consequences that the employer contemplates drawing therefrom as to the termination conditions, it is up to the judge to characterize the alleged facts put forward”. In this case, the court of appeal should thus have sought “whether the alleged facts for which the employee was reproached constituted gross misconduct or misconduct likely to confer a real and serious cause to the dismissal” rather than deciding that the dismissal was deprived of a real and serious cause (Cass. Soc. 16 Sept. 2020, No. 18-25.943).

In a second case, a truck driver, dismissed for a real and serious cause, had his notice period terminated early due to gross misconduct on his part. The trial judges had considered that the employee’s misconduct during the notice period justified that his dismissal for a real and serious cause be converted into a dismissal for gross misconduct. Yet, according to the Cour de cassation, such a decision is not possible. Indeed, “the letter of dismissal setting the scope of the dispute, a judge cannot aggravate the way the misconduct has been characterized by the employer in this letter” (Cass. Soc. 16 Sept. 2020, No. 19-10.583).

When electronic messages, exchanged using the electronic channels made available to the employee by the employer for the purpose of his work, are sent from a professional inbox and have not been identified as personal, the employer is entitled to read them. In this case, an employee had been dismissed for gross misconduct, notably due to messages exchanged with a colleague including insulting and degrading remarks regarding superiors and subordinates, but also a great number of criticisms about the company’s organization, strategy and methods. The Cour de cassation has validated the court of appeal’s decision, which has decided that “these messages, which were connected with professional activity, were not of a private nature, it has thus showed that they could be used in supporting a disciplinary procedure against the employee whose disloyal behavior had been noted” (Cass. Soc. 9 Sept. 2020, No. 18-20.489).

Prior to the negotiation of the pre-election agreement, a union had requested the delivery of a certain number of documents to control the reality of the company’s staff. The company having provided part of the requested documents and having refused to provide the other ones, the union referred the case to the court of first instance (known as tribunal d’instance) in order to obtain the delivery of these documents. The trial judges, with whom the Cour de cassation have agreed, have dismissed the plaintiffs’ claims, after having noted that “as part of the negotiation of the pre-election agreement, the employer had provided to the union the single staff register, the list of fixed-term contracts other than replacement ones, the list of temporary workers, the list of service providers, the list of part-time employees along with a staff table and that the union did not establish the requirement of additional documents to allow calculating the company’s staff”, so that the employer had fulfilled his obligation to provide information (Cass. Soc. 16 Sept. 2020, No. 19-60.185).

Pursuant to the provisions of article L. 1152-2 of the labor code, no employee may be dismissed for having testified about or related repeated psychological harassment wrongdoings. According to article L. 1152-3 of this code, any termination of an employment contract having occurred in breach of this text shall be null. According to the Cour de cassation, “from this it follows that the employee who relates acts of psychological harassment cannot be dismissed for this reason, unless they are acting in bad faith, which can only result from the employee having knowledge of the falseness of the acts they are reporting”. In this case, an employee was “lyingly” reproaching his employer for not having given him, for several months, the reasons for the end of his assignment, although he had been informed thereof in writing. The trial judges having noted that “the knowledge by the employee of the falseness of his allegations of psychological harassment was inferred from, on the one hand the contradiction existing between his displayed wish to obtain explanations as to the reasons for his assignment withdrawal and his persistent refusal to fairly discuss about said reasons with the employer, on the other hand the repeated nature of the thanks he had addressed to the employer and the repeated expression of his will to be open to dialogue, when in fact he had defeated all the employer’s attempts to reach some constructive communication by refusing to attend all the appointments he had been given despite his contractual obligations”, the Cour de cassation considers that they had thus constituted “the employee’s bad faith in reporting the psychological harassment wrongdoings”. The Highest court adds that “the potential absence in the letter of dismissal of an indication as to the bad faith with which the employee has related the psychological harassment wrongdoings is not exclusive of the concerned person’s bad faith, which can be alleged by the employer before the court” (Cass. Soc. 16 Sept. 2020, No. 18-26.696).

EMPLOYMENT CONTRACT: Statute of limitations applicable to an action aiming at converting a part-time employment contract.

DISCIPLINARY DISMISSAL: Court’s discretion regarding misconduct.

FUNDAMENTAL FREEDOMS AND RIGHTS: Clarifications relating to professional instant messaging.

PROFESSIONAL ELECTIONS: Clarifications as to the employer’s obligation to provide information to unions.

HARASSMENT: Impact of an employee’s bad faith.