RIGHT TO REFUSE THE RECLASSIFICATION PROPOSAL
IN THE NAME OF THE FRENCH PEOPLE
THE COUR DE CASSATION, SOCIAL CHAMBER, delivered the following judgment:
Considering their connection, appeals n ° A 00-46.322 and B 00-46.323 are joined;
On the sole means:
Whereas a collective redundancy procedure for economic reasons giving rise to the establishment of a social plan was initiated in 1996 by the company Total raffinage distribution; that after this procedure, Mr X … and Mrs. Y …, employees of the society, were dismissed, not for economic reason, but for serious fault due to their refusal deliberate any attempt of reclassement;
Whereas the company criticizes the judgment under appeal (Nancy, October 4, 2000) for having said that the dismissal of the employees was devoid of real and serious cause and for having ordered it to pay them severance payments and compensation for dismissal without real and serious cause then, according to the means:
1 / que l’abus ne saurait être juridiquement protégé, le droit ne pouvant conférer l’irresponsabilité, qu’il n’existe pas de droits discrétionnaires et qu’il y a abus à détourner un droit de sa finalité sociale ; que, dès lors, en l’espèce, eu égard aux termes de la lettre de licenciement tels qu’ils ont été expressément relevés par la cour d’appel, il appartenait à celle-ci de rechercher si au-delà de la liberté individuelle dont dispose chaque individu, le rejet systématique par les salariés de tous les dispositifs de reclassement mis en place par les partenaires sociaux dans le cadre du plan social, traduisant une volonté délibérée de ne pas respecter les finalités de ce plan social afin d’une part de profiter de l’engagement pris par la société TRD de ne pas licencier les salariés jusqu’au 31 décembre 1997, et ainsi de percevoir leur salaire à compter du 1er novembre 1996 sans travailler, et d’autre part, de bénéficier d’un licenciement après le 31 décembre 1997 leur permettant de percevoir d’importantes indemnités de licenciement et des indemnités ASSEDIC sans dégressivité jusqu’à l’âge de la retraite, n’était pas abusif ; qu’en s’abstenant d’une telle recherche, la cour d’appel a privé sa décision de base légale au regard de l’article 1134 du Code civil et des articles L.122-8, L. 122-9, L. 122-14-3 et L. 122-14-4 du Code du travail ;
2 / that the preamble of the social plan signed on July 31, 1996 specified: 2- “no notification of dismissal will intervene on the initiative of the direction before December 31, 1997”; that thus, the company TRD was committed not to proceed to any dismissal, whatever the reason, before December 31, 1997, so that it could not sanction the abusive behavior of MM. X … and Y … before this date; that, consequently, by judging “that the company TRD was only held not to pronounce of redundancy economic until December 31, 1997; that it remained free to pronounce a sanction for fault with each refusal of the employees without waiting for February 2 1998 “, by decisive reasons for the solution of the dispute since, on the one hand, they allowed the Court of Appeal to deduce from it quite wrongly that the company TRD could have sanctioned the behavior of MM. X … and Y … before February 2, 1998, and that, on the other hand, they prohibited him from understanding how the behavior of the employees had been abusive, they having refused any solution allowing them to find a job in order to receive their salary for more than a year, without having to work, the court of appeal distorted the social plan, and violated article 1134 of the Civil Code; To deduce, quite wrongly, that the company TRD could have sanctioned the behavior of MM. X … and Y … before February 2, 1998, and that, on the other hand, they prohibited him from understanding how the behavior of the employees had been abusive, they having refused any solution allowing them to find a job in order to receive their salary for more than a year, without having to work, the court of appeal distorted the social plan, and violated article 1134 of the Civil Code; To deduce, quite wrongly, that the company TRD could have sanctioned the behavior of MM. X … and Y … before February 2, 1998, and that, on the other hand, they forbade him to understand in what way the behavior of the employees had been abusive, they having refused any solution allowing them to find a job in order to receive their salary for more than a year, without having to work, the court of appeal distorted the social plan, and violated article 1134 of the Civil Code;
3 / that if under the terms of Article L. 122-44 of the Labor Code, no faulty act can give rise on its own to the initiation of disciplinary proceedings against an employee beyond a period of two months from the day on which the employer became aware of it, a fact prior to two months may be taken into consideration when the employee’s behavior continued within this period; that in the present case, after having recalled this solution of positive law, the company TRD had expressly noted in its conclusions of appeal “that, such is indeed the case in the present case since the abusive behavior of MM. X .. . and Y … s’
But whereas the employee threatened with dismissal for economic reasons is entitled to refuse the reclassification measures which are proposed to him by the employer; that the Court of Appeal, which found that the employees had confined themselves to not adhering to the internal early retirement measure provided for by the social plan, to refusing a geographical transfer, and not to use the services of a firm “outplacement”, may have decided that they had only exercised their right;
that the means is unfounded;
FOR THESE REASONS :
DISMISSES the appeals;
Orders the company Total raffinage distribution to pay the costs;
Considering article 700 of the new Code of civil procedure, condemns the company Total refining distribution to pay to Mr X … and Mrs. Y … the sum of 1,300 euros each;
Thus done and judged by the Court of Cassation, Social Chamber, and pronounced by the president in his public hearing on January twenty-ninth, two thousand and three.
