The conflicts that animate the prud’hommes reflect on a daily basis our social history. The hearing in the office of the court shall be public. Regularly, a journalist for The Express purpose of attending the debates.
Paris (conseil des prud’hommes, section coaching, may 4, 2018-15: 40.
The president is surrounded by three advisors. In front of him, the lawyer, Stéphane (1) and the lawyer of his ex-employer.
The president: “What are your requests? “
The lawyer Stéphane: “My client has been dismissed for serious misconduct. I request that the commission recognizes the termination without cause real and serious and, accordingly, is entitled to 11 341 euros of notice and 1 134 euros of paid leave related 10 333 euros of conventional compensation for dismissal, 90 000 euros in damages and interest for dismissal without cause real and serious. I have a second pane of requests for a reminder of earnings on the coefficient that would have had to have my client and a differential between February 2015 and February 2017 to 21 054 € 2 € 105 paid leave related and 2 500 euros to article 700.”
The president: “A counterclaim?”
The counsel for the employer: “2 500 euros to article 700.”
The president: “The council is listening to you.”
The lawyer Stéphane: “My request is very motivated. My client has been committed on April 15, 2010 in web quality-internal designer of the company. It has a function of creation and would have had to become art director web. In effect, he coordinates the artistic direction of other web-designers. It is for this reason that I request a reminder of earnings on the actual work that he has done, without me holding on to his job description in 2010 that the company has, during all these years, forgotten by him assigned responsibilities. The title and salary have not changed.”
The president: ‘Go to serious misconduct. The rest is literature!”
The lawyer Stéphane: “This is one of my requests, mr. president!”
The president: “The council is seized for negligence. If you need to challenge the wage and the coefficient of your client, you enter on this ground.”
The lawyer Stéphane: “My reasoning is in a while, mr. president. If we don’t understand what that was actually my client, you don’t understand the serious misconduct alleged. I am coming to that. The interview evaluations are very good until 2016. But in April of the same year, the manager pulls him back to his duties on the three flagship brands of the group to stick to one brand.
On December 15, 2016, he withdrew also an international section that he had. He proposes to go about the job of an employee on maternity leave because there was a reorganization. But the employee in question because of the production, it is not a web-designer. My client asks to see the job description of his colleague. On 11 January 2017, after the Christmas holidays, the higher returns to him, to give him a job description on the area of Europe which is entitled: “designer content social media”. He does not refuse to take up the post, he notes that there is more to content creation, and asks: “Where is the creation, if I take this job?”. He asked for clarification on the functions that do not correspond to what why he was hired.”
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The counsel for the employer: “I’d just like to give a precision to inform the commission: it is a group that had two flagship brands in the field of beauty from 2012, and then we bought other brands. But as one realizes that one has left out one of the two brands, we decide to reorganize, it sells what is not our core business. Result, in January 2017, we will reorganize the group and, therefore, the teams.
When it’s engaged, your client is assigned to emerging brands. But he works for a company that has multiple brands, not a brand exclusive. It is not a web-designer international, just web-designer who has been able to work on brands that are growing internationally. We want to reorient the forces on one of our two major brands, and this posed a problem. It does not say that he rejects the new task, it always asks for clarification and this will never. It is about insubordination, even if it thinks it’s clever to ask constantly for clarification, and to put forward its initial missions. The employer has a power of direction, it remains in the same functions. It begins to evoke the change in march 2016, he is terminated by February 2017. We waited 11 months and made with him the tour of the possibilities.”
The lawyer Stéphane: “In labour law, this is called decommissioning. The asking of questions because of her loss. On the replacement of the colleague on maternity leave, he asks legitimately what he will do after. See the chronology: January 19, 2017, he said: “This is temporary”. Maybe. But it is anxiety-provoking for him. On 20 January, he recalled what his duties are and, on the 23rd of January, he is invited to an interview prior to dismissal. And you tell us that we did the tour of the possibilities that are offered to them in the company? He was punished for not having taken any work in the course of a reorganization made in haste.”
The president: “What happened to his other colleagues, those who worked in the same unit as him?”
The lawyer Stéphane: “His position is emptied of its substance, because the others have been put on missions in the Royaume in the Uk or in Switzerland, with another hierarchy, or have benefited from breaks. This is why I told you about the downgrade of my client and his / her responsibilities acquired during six years and ten months, as if it had been a simple web-designer, the question would have been more simple.”
The counsel for the employer: “It was a web-designer, you are unable to demonstrate the reverse. The work is the same as it does on the brand, which had been granted at the outset or on another group that is no less prestigious, on the contrary. He is not asked to work for an unknown brand but for the brand flagship of the group. His colleague on maternity leave is exactly the same level as him, there is no change in his contract of employment.”
The lawyer Stéphane: “It was so simple that it gave no clarification on this and temporary work on the missions he should do after returning from maternity leave, her colleague.”
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The president (the lawyer of Stefan): “According to you, what should be his qualification?”
The lawyer Stéphane: “It was the coefficient 350 and I made a description of its business, taken on. Legifrance, where I arrive at an annual compensation of 48 000 euros, and a coefficient of 510.”
The president: “Why € 90 000 of damage?”
The lawyer, Stéphane: “A dismissal in a flash, no warning, and its performance exceeds expectations, as they say of the annual interviews from 2010 to 2016.””
The president (counsel for the employer): “The employee was-t-he endangered the company?”
The lawyer of the employer (surprised): “No.”
The president (always the lawyer of the employer): “Why a serious fault, then?”
The counsel for the employer: “When you refuse to execute an instruction, it is a mistake.”
The president: “Serious?”
The counsel for the employer: “We considered that, yes. Refuse to execute an instruction is a serious fault that can jeopardize the company. “
16.10. The chairman: “The debate is closed.”
Verdict: The serious misconduct is not confirmed by the council, which considers, however, that the termination for cause real and serious is justified and the reclassifying for this reason. He ordered the company to pay to Stéphane 11 341 euros of notice, 1 134 euros of paid leave related 10 333 euros of conventional compensation for dismissal and 500 euros to article 700.
Decommissioning, insubordination, and misconduct
Attached to several brands, Stéphane did not want to work for another brand in the group – that it deemed to be less prestigious – when the company is reorganized. By its power of direction, the employer had the right to ask him to do the same job.
(1) The name was changed.
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Stéphane submits a decommissioning and change of its tasks. The council has not followed this up. It has not completely followed the employer, or a recent decision of the Court of cassation, confirming the dismissal for serious misconduct of an employee who had repeatedly refused a new assignment (in status and compensation equal to): “his refusal repeated of this change was an act of insubordination, making it impossible for sustaining it in the business” (January 6, 2016, appeal no. 14-20.109). The councillors are held to the doctrine of the sages of the may 11, 2005 (appeal no. 03-41753: “the refusal by an employee of a change in his working conditions, he makes his dismissal was based on an actual cause and serious, does not of itself constitute a serious misconduct”.
(1) The name was changed.
