LexInter | January 13, 2019 | 0 Comments

The Court of Cassation, Social Chamber

May 29, 2001. Judgment n ° 2435. Rejection.

Appeal No. 98-46.341.

CIVILIAN BULLETIN.

NOTE Hautefort, Marie , Social case-law Lamy, n ° 84, 07/31/2001, pp. 8-10

On the appeal brought by the company Dubois Covers, a public limited company, whose registered office is ZAE Les 3 Tilleuls, 59850 Nieppe,

in cassation of a judgment rendered on October 23, 1998 by the Douai Court of Appeal (Social Chamber), in favor of Mr. Alain Cardon, residing 151, rue Jean-Jacques Rousseau, 59260 Hellemmes,

defendant in cassation;

THE COURTYARD,

Whereas Mr. Cardon was hired on March 1, 1989 by the Dubois company as administrative and financial director; that he ceased his work on November 3, 1995, the date on which the parties entered into a transaction;

On the first plea:

Whereas the company Dubois Covers denounces the judgment under appeal (Douai, October 23, 1998) of having canceled the transaction signed on November 3, 1995 on the grounds that the transaction can only be validly concluded once the breach has become final and that the transactional agreement was concluded when Mr. Cardon had not been previously dismissed, then, according to the means, that, according to article 4 of the new Code of Civil Procedure, the judges are bound by the conclusions taken before them and cannot modify the terms of the dispute before them; that case present, it results from the report of the prud’hommes advisers of September 3, 1996 that the secretary, Mrs. Dumetz was questioned by the advisers under oath and produced the notebook mail where it records the mail of each day; that Mr. Cardon and his counsel, who were present, necessarily saw this notebook but made no reservations or objected to what was mentioned in it; that thus, the Court of Appeal could not affirm that this notebook which demonstrated the exactitude of the dates of the letters announcing the dismissal of Mr. Cardon was not in the debate whereas it had been the subject of a contradictory examination during the industrial tribunal investigation without modifying the terms of the dispute and violating the aforementioned article

;

But expected that, without incurring the grievance of the means, the Court of Appeal confined itself to finding that the disputed part had not been paid to the debates before it despite the request of the employee in this direction; that the means is unfounded;

On the second plea:

Whereas the company Dubois Coversures still complains against the judgment for having decided that the breach of the employment contract of Mr. Cardon did not proceed from a real and serious cause, then, according to the means:

1 ° / that it follows from Article L. 122-14-3 of the Labor Code that if the loss of confidence is not in itself a cause of dismissal, it however justifies the termination of the employment contract if it is based on objective elements; that it emerges from the Court of Appeal’s own findings that Mr. Cardon, who was administrative and financial director of the company Dubois Covers and assisted its chairman and managing director, was responsible for the day-to-day management and accounting of this company and that the latter had noted multiple anomalies in the accounting, which gave rise to adjustments and reminders, as well as omissions to settle invoices and reply to letters; that these facts, which were noted by the Court of Appeal and are not discussed, are objective facts which demonstrate administrative and accounting mismanagement, of which a loss of confidence on the part of the manager towards the head of the departments responsible for this management is necessarily avoided; that by affirming the contrary, the court of appeal did not deduce the legal consequences from its own findings and violated the aforementioned article

;

2 ° / that the employer of Mr. Cardon had argued in his appeal writings that the latter had on numerous occasions been warned – which is attested by letters of 1992 and 1993 – for the poor execution of his work, whether it is his refusal to perform the tasks entrusted to him, his lack of customer reminders, invoice issuance calling into question the sincerity of the balance sheet or even the voluntary lack of response letters and inquiries; that the Court of Appeal could not decide that the dismissal had no real and serious cause without explaining, as invited by the employer of Mr. Cardon, on the previous reproaches of which the latter had made the object; that by refusing to respond to this peremptory plea, the court of

;

But whereas the loss of confidence of the employer can never constitute as such a cause of dismissal even when it rests on objective elements; that only these objective elements can, if necessary, constitute a cause of dismissal, but not the loss of confidence which could result from it for the employer;

And given that, having considered that the management anomalies alleged against the employee were not of a sufficiently serious nature to constitute a cause for dismissal, the court of appeal, which did not have to investigate whether these anomalies could have impaired confidence the employer, exercising the power of appreciation that it derives from Article L. 122-14-3 of the Labor Code, decided that the dismissal was devoid of real and serious cause;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the company Dubois Covers to pay the costs;

Considering article 700 of the new Code of Civil Procedure, condemns the company Dubois Covers to pay Mr. Cardon the sum of 15,000 francs or 2,286.74 euros;

On the report of Mr. Frouin, referendum advisor, the observations of Mr. Bouthors, lawyer of the company Dubois Covers, the conclusions of Mr. Duplat, general counsel; M. WAQUET, Dean Councilor acting as President.

THE COURT OF CASSATION, SOCIAL CHAMBER. Limited training.

March 27, 2001. Judgment n ° 1345. Rejection.

Appeal No. 99-42.031.

On the appeal brought by SNC Guichou Limouzy Marrakchi – Pharmacie du Lauragais, general partnership, with registered office at 36, avenue du Lauragais, 31320 Castanet Tolosan,

in cassation of a judgment rendered on February 5, 1999 by the Toulouse Court of Appeal (4th social chamber), in favor of Ms. Huguette Francois, residing at 10, rue Delherm, 31320 Castanet Tolosan,

defendant in cassation;

THE COURTYARD,

On the resources gathered:

Whereas, according to the judgment under appeal (Toulouse, February 5, 1999), that Ms. François, working since 1958 as an assistant in the Laurageais pharmacy, was dismissed for serious misconduct on November 17, 1995; that he was accused of breaches of his professional obligations as well as the theft of a cosmetic; that it seized the industrial tribunal of demands for payment of severance indemnities and damages for dismissal without real and serious cause;

Whereas the company criticizes the Court of Appeal for having said that the dismissal was devoid of real and serious cause and granted the employee’s requests, then according to the first plea, that the dismissal letter stated “on October 26 1995, you are guilty of the theft of a product from the pharmacy. The theft of which you are thus guilty, in the exercise of your functions by betraying our confidence and emanating moreover from an executive, makes it impossible to continue your employment contract and justifies your immediate dismissal without notice “; whereas considering therefore that the letter of dismissal was not based on loss of confidence, the appellate judges distorted this document and violated Article 1134 of the Civil Code; whereas loss of confidence may justify dismissal; that the court of appeal which did not seek as it was alleged, if the employer in its letter of dismissal had not justified the reasons for its loss of confidence by underlining “that on the occasion of this theft your behavior was particularly regrettable, because not only did you deny it until the missing product was found in your possession, but also, you left an inadmissible suspicion on your other co-workers “, thus deprived of its legal basis decision with regard to Articles L. 122-8, L. 122-9 and L. 122-14-3 of the Labor Code; then finally that the theft committed to the detriment of his employer constitutes a serious fault; that the court of appeal noting that the employee had been surprised by the gendarmes in possession of a stolen object, in a pharmacy where previously a high number of thefts took place, which had only been interrupted during the absence of this employee and who nevertheless considered that even if this fact was real it did not constitute a serious fault, thus violated Articles L. 122-6, L 122-8, L 122-14-2 and L. 122-14-3 of Labor Code ; then according to the second plea that the proof of the existence of a real and serious cause dismissal does not rest more with the employer than the absence of such a cause does not weigh on the employee; that by affirming the contrary, the appellate judges violated Article L. 122-14-3 of the Labor Code; in a pharmacy where previously a high number of thefts took place, which were only interrupted during the absence of this employee and which nevertheless considered that even if this fact was real it did not constitute a serious fault, thus violated Articles L. 122-6, L 122-8, L 122-14-2 and L. 122-14-3 of the Labor Code; then according to the second plea that the proof of the existence of a real and serious cause dismissal does not rest more with the employer than the absence of such a cause does not weigh on the employee; that by affirming the contrary, the appellate judges violated Article L. 122-14-3 of the Labor Code; in a pharmacy where previously a high number of thefts took place, which were only interrupted during the absence of this employee and which nevertheless considered that even if this fact was real it did not constitute a serious fault, thus violated Articles L. 122-6, L 122-8, L 122-14-2 and L. 122-14-3 of the Labor Code; then according to the second plea that the proof of the existence of a real and serious cause dismissal does not rest more with the employer than the absence of such a cause does not weigh on the employee; that by affirming the contrary, the appellate judges violated Article L. 122-14-3 of the Labor Code; were interrupted only during the absences of this employee and who nevertheless considered that even if this fact was real it did not constitute a serious fault, thus violated articles L. 122-6, L 122-8, L 122-14-2 and L. 122-14-3 of the Labor Code; then according to the second plea that the proof of the existence of a real and serious cause dismissal does not rest more with the employer than the absence of such a cause does not weigh on the employee; that by affirming the contrary, the appellate judges violated Article L. 122-14-3 of the Labor Code; were interrupted only during the absences of this employee and who nevertheless considered that even if this fact was real it did not constitute a serious fault, thus violated articles L. 122-6, L 122-8, L 122-14-2 and L. 122-14-3 of the Labor Code; then according to the second plea that the proof of the existence of a real and serious cause dismissal does not rest more with the employer than the absence of such a cause does not weigh on the employee; that by affirming the contrary, the appellate judges violated Article L. 122-14-3 of the Labor Code; no more incumbent on the employer than the absence of such a cause weighs on the employee; that by affirming the contrary, the appellate judges violated Article L. 122-14-3 of the Labor Code; no more incumbent on the employer than the absence of such a cause weighs on the employee; that by affirming the contrary, the appellate judges violated Article L. 122-14-3 of the Labor Code;

But given that after noting that the complaints of a professional nature were not established, the Court of Appeal was able to decide that the embezzlement of an object having a value of less than 200 francs, if it was real, not could characterize a serious fault on the part of an employee with 37 years of seniority and considered, within the framework of the discretionary power that she derives from Article L. 122-14-3 of the Labor Code, that this fault was not sufficiently serious to justify the dismissal; that the means are unfounded;

FOR THESE REASONS :

DISMISSES the appeal;

Condemns the company Guichou Limouzy Marrakchi – Pharmacie du Lauragais to the costs;

Considering article 700 of the new Code of Civil Procedure, rejects the request of Mrs. François;

On the report of Mrs. Duval-Arnould, referendum advisor, the observations of Mr. Roger, lawyer of the company Guichou Limouzy Marrakchi – Pharmacie du Lauragais, the conclusions of Mr. Lyon-Caen, general counsel; M. WAQUET, Dean Councilor acting as President.

 

 

Cass. Soc. March 21, 2001. Judgment n ° 1281. Rejection.

Appeal No. 98-45.918.

On the appeal brought by Ateliers Marcel Carbonel, a limited liability company, whose registered office is 47, rue Neuve Sainte-Catherine, 13007 Marseille,

in cassation of a judgment rendered on March 23, 1998 by the Aix-en-Provence Court of Appeal (9th social chamber), in favor of Ms. Jacqueline Arrizi, residing in l’Aigue Bleue, n ° 173, 5, rue Mozart, 13960 Sausset-les-Pins,

defendant in cassation;

THE COURTYARD,

On the resources gathered:

Whereas Mrs Arizzi, hired on March 1, 1985 by Ateliers Marcel Carbonel, as an accountant, staff representative from September 1987 to December 1992, was dismissed by letter of July 13, 1993 after the expiry of the period of protection attached to her mandate as a former staff representative;

Whereas the company criticizes the judgment under appeal (Aix-en-Provence, March 23, 1998) for having decided that the dismissal of Ms. Arizzi was devoid of real and serious cause, then, according to the means:

1 ° / that, in the letter of dismissal and in its conclusions, the employer invoked the new request money formulated by Mrs. Arizzi on June 23, 1993, facts not denied by the latter in its conclusions in question appeal; that by not taking this reason into account, by not asking Ms Arizzi to explain herself on this point and by simply saying that the employer was not producing any other verifiable objective element in support of its claim, the Court of Appeal disregarded the extent of its powers in violation of Article L. 122-14-3 of the Labor Code;

2 ° / that by adopting the conclusions of Mrs. Arizzi to consider that the reasons for the letter of dismissal were those of the last request for authorization of dismissal which gave rise to a decision of refusal notified to the employer on June 21, 1993, whereas the letter is motivated in consideration of the whole of the contractual period contrary to the request for authorization of dismissal which could relate only to a period between the previous request and itself, the court of appeal distorted the clear and precise terms of the letter of dismissal, the reasons for which fixed the scope of the dispute;

3 ° / that if the reasons identical to those which gave rise to a decision of refusal of dismissal by the labor inspectorate cannot be invoked in support of a dismissal after the period of protection, it is otherwise when other facts occur at the end of this period which, combined with the previous ones, make it impossible to maintain the contractual relationship or if we consider the set made up of the facts giving rise to the request for authorization dismissal; that by limiting itself to assessing the serious fault in the light of the facts already produced in support of a request for authorization to dismiss when the letter of dismissal considered the behavior of the employee on the

4 ° / that the proof of the real and serious cause of the dismissal which was invoked in the alternative by the employer does not weigh particularly on one or the other of the parts; that by drawing as a consequence of its reasoning on the existence of a serious fault the proof of which rests, it is true, on the employer, the absence of real and serious cause for the dismissal and by not analyzing separately and according to the applicable rules of evidence, the employer’s subsidiary claim based on specific, objective and verifiable elements set out in the dismissal letter and grouped under the terms “loss of confidence” in its conclusions, the Court of Appeal violated Article L. 122-14-3 of the Labor Code;

5 ° / that, in the letter of dismissal and in its conclusions, the employer invoked the new request money formulated by Mrs. Arizzi on June 23, 1993, facts not denied by the latter in its conclusions; that by not taking this reason into account and by not asking Ms Arizzi to explain herself on this point and by simply saying that the employer was not producing any other verifiable objective evidence to reject the subsidiary’s request. employer, the Court of Appeal disregarded the extent of its powers in violation of Article L. 122-14-3 of the Labor Code;

But given that the Court of Appeal, which found that the employer produced no verifiable objective evidence on the wrongful behavior of the employee after the last refusal of the labor inspector to authorize her dismissal, does not incur the means grievances; that the means are unfounded;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the company Ateliers Marcel Carbonel to pay the costs;

On the report of M. Lanquetin, adviser, the conclusions of M. Kehrig, Advocate General; M. BOUBLI, oldest adviser acting as president.

THE COURT OF CASSATION, SOCIAL CHAMBER. Limited training.

March 7, 2001. Judgment n ° 901. Partial cassation.

Appeal No. 98-42.985.

 

 

On the appeal brought by Mr. Jean-Marc Tuffet, residing at 48, chemin du Monteil, 33700 Merignac,

in cassation of a judgment rendered on April 6, 1998 by the Bordeaux Court of Appeal (social chamber, section A), in favor of: 1 ° / the company Caritextil, a public limited company, whose registered office is Zone Industrielle, 21, rue de l’Industrie, BP 101, 67721 Hoerdt Cedex,

2 ° / of the company Steilmann France, a limited liability company, whose registered office is 21, rue de l’Industrie, BP 101, 67721 Hoert Cedex,

3 ° / of the ASSEDIC du Sud-Ouest, whose head office is Quartier du Lac, avenue de la Jallère, 33056 Bordeaux Cedex,

defendants in cassation;

THE COURTYARD,

On the sole means:

Considering article L. 122-14-3 of the Labor Code;

Whereas Mr. Tuffet was VRP in the service of the companies Steiman and Caritextil and in charge of marketing the products of these companies made up of articles of feminine clothing; that the companies Steimann and Caritextil are part of the same group known as “Zastera group” which also includes the company Julie Guerlande; that in parallel with his activities of VRP Mr. Tuffet is holder of shares in the company Nathalie which markets in particular the products of the company Julie Guerlande; that the June 12, 1994, following a commercial litigation, the company Nathalie brought against the company Julie Guerlande before the commercial court of Paris; that on July 7, 1994, Mr. Tuffet was dismissed for serious misconduct due to the existence of this lawsuit which, according to the letter of dismissal has “

Whereas in order to dismiss Mr. Tuffet of his claim for damages for dismissal without real and serious cause, the Court of Appeal noted that if Mr. Tuffet did not actually and directly commit any fault during the proceedings brought by Mrs. Tuffet, CEO of the company Nathalie, against a company of the group of the employer of Mr. Tuffet, the latter had interests in the company Nathalie which was in constant and close business relationship with the Zastera group ; that the pursuit of contractual relations could no longer take place in the necessary climate of confidence and that the dismissal was based on a loss of confidence caused by the disputes between the companies managed by Ms. Tuffet and her family and the group companies employing Mr. Tuffet;

That by ruling thus while it noted, on the one hand, that the dismissal had been pronounced for fault and on the other hand, that the employee had not committed any fault, the court of appeal did not drew the legal consequences of its findings and violated the aforementioned text;

FOR THESE REASONS :

BREAK AND CANCELED in that the court of appeal rejected the employee’s claim for damages for dismissal without real and serious cause, the judgment rendered on April 6, 1998, between the parties, by the court of appeal of Bordeaux;

DIT there be no referral;

Orders the limited liability company Caritextil, the limited liability company Steilmann France, the ASSEDIC du Sud-Ouest to pay the costs;

Considering article 700 of the new Code of Civil Procedure, condemns the company Caritextil, the company Steilmann France to pay Mr. Tuffet the sum of 20,000 francs, or 3,048.98 euros;

Said that on the diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines or following the broken judgment;

On the report of Mr. Richard de la Tour, referendum advisor, the observations of the SCP Gatineau, lawyer of Mr. Tuffet, of the SCP Lyon-Caen, Fabiani and Thiriez, lawyer of the company Caritextil, of the company Steilmann France, the conclusions of M. Duplat, Advocate General; Mr. CARMET, longest-serving adviser serving as chairman.

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