THE COUR DE CASSATION, SOCIAL CHAMBER
LexInter | April 4, 2012 | 0 Comments

THE COUR DE CASSATION, SOCIAL CHAMBER

THE COUR DE CASSATION, SOCIAL CHAMBER, delivered the following judgment:

Expected according to the judgment attacked (Poitiers, October 14, 2008), that Mrs. Y …, engaged, June 1, 2004, as a taxi driver by MX …, was dismissed for serious misconduct on June 17, 2005;

On the first plea:

Whereas the employee grieves the judgment for retaining the serious fault and dismissing it as a result of her compensation claims, then, according to the means:

1 ° / that the serious fault is characterized only on the condition that it results from a fact or a set of facts attributable to the employee which constitutes a violation of the obligations of the employment contract or of the employment relations of such importance as makes it impossible to maintain the employee during the notice period; whereas considering that the employee had breached her contractual obligations by refusing to perform errands before and after certain hours, as well as travel for a client, however the employment contract did not stipulate such obligations, the court of appeal, which believed it could characterize the employee’s breach of an unstated contractual obligation,

2 ° / that by writings remained unanswered, she argued that she had benefited from the employer of schedules arranged; that not explaining on this means likely to demonstrate that it had not breached its contractual obligations, the Court of Appeal violated Article 455 of the Code of Civil Procedure;

3 ° / that the judge has the obligation to verify the exact cause of the dismissal beyond the statements of the letter of dismissal; that by retaining that her dismissal was based on a serious fault without even checking, as she was however invited to do so by her written appeal, whether the cause of the dismissal of which she had been the subject did not lie, in reality , in the hiring of Mr X’s own son to the post she occupied the Court of Appeal, which refrained from verifying the exact cause of the dismissal, disregarded the extent of his powers and violated the article L. 1232-1 of the labor code;

But given that having considered as established the grievances set out in the dismissal letter and relating to the employee’s refusal to perform her service according to the provisions of her employment contract, the Court of Appeal necessarily excluded any other cause of dismissal. ; that the means is unfounded;

On the second plea:

Whereas the employee grieves the stopping of rejecting her request for payment of overtime, then, depending on the means, the judge cannot make up his mind solely on the basis of the elements provided by the employee and that he it is up to the employer to produce elements capable of justifying the hours actually worked by the employee; that based solely on the insufficient evidence reported by the employee, the Court of Appeal, which placed the burden of proof on the employee, violated Article L. 3171-4 of the Labor Code ;

But given that appreciating the elements produced on both sides and noting that the employee’s accounts did not correspond to the schedules communicated by the employer, the court of appeal accepted, without disregarding the rules of administration of the proof applicable in the matter, that an overrun of working time was not established; that the means is unfounded;

FOR THESE REASONS :

DISMISSES the appeal;

Condemns Mrs. Y … at the costs;

Thus done and judged by the Court of Cassation, social chamber, and pronounced by the president in his public hearing on July 13, two thousand and ten.


MEANS ANNEXED to this judgment

Means produced by SCP Peignot et Garreau, lawyer with the Councils, for Mrs. Y …

FIRST MEANS OF TERMINATION

The means reproaches the confirmatory judgment attacked to have said that the dismissal of Madame Christine Y … was based on a serious fault , and to have it, accordingly, dismissed its claims for compensation;

ON THE REASONS THAT “the letter of dismissal aims the insubordination of the employee, her refusal to accomplish the requested missions, the faulty performance of his work performance, his denigration of the company and the company manager with the customers, endangering others, using the company’s vehicle for personal purposes, refusing to return the cash register and illustrates these complaints of detailed facts; that by letter addressed on September 23, 2004, three months after the hiring, Mr. X … reproached Mrs. Y … to take her daughter in the vehicle of the company, to return home with the vehicle of business, refuse to take groceries early in the morning, late at night or ensure weekend permanence like the other employees of the company, not to respect his schedule, not to behave correctly with the customers, not to wear his badge, to leave his daughter at the office while she is in service; that it emerges from the documents poured into the debates that Madame Y … refused to run errands before 8:30 a.m. and after 7 p.m. as permitted by her employment contract, materially implied her taxi activity, the other employees usually practiced it who also had to replace her at the last moment which disorganized the company (corroborating certificates from Mesdames Z … and A …), that she did not normally travel for a regular customer who was important to the company. company, the company VITALIS which ensures the transport of medical personnel, which applied penalties (certificates of January 12, 2005 and March 11, 2005) and finally that it took its 10-year-old daughter in the taxi during working hours (certificate from Mrs B …); that the persistent and unjustified refusal to perform his services in accordance with his contractual obligations, despite a formal notice sent to him on September 23, 2004, characterizes a serious misconduct making it impossible for the employee to remain in the company for the period of notice; that the judgment attacked which ruled the dismissal based on a serious fault will be confirmed on this point ”;

AND TO REASONS ADOPTED THAT “following the prior interview of June 13, 2005, Mrs. Y … received the letter of dismissal for serious misconduct ; that Mr X …, the employer, takes up in the letter of six pages, all the facts which led him to dismiss Mrs Y …, in particular:
“Insubordination, refusal to perform the requested missions, faulty performance of the work service, denigration of the company and the company manager to customers, endangering others, use for personal purposes of the vehicle of the company, refusal to return the fund ”; that in the letter many facts which took place during the last weeks of work; that of course Madame Y …, by mail dated July 12, 2005, contested the facts which were reproached to him; that from September 23, 2004, Mrs. Y … had been the subject of a letter by which the employer had told him “his concerns, questions, following your way of doing and his dissatisfaction”; that it appears that Madame Y … never fully integrated his new job, showing laxity and lack of serious; that the Council says that the dismissal for serious misconduct is founded and rejects Mrs Y … of all the requests related to dismissal ”;

WHEN ON THE ONE HAND THAT the serious fault is characterized only on the condition that it results from a fact or a set of facts attributable to the employee which constitutes a violation of the obligations of the employment contract or of the employment relations of such importance as makes it impossible to maintain the employee during the notice period; whereas considering that the employee had breached her contractual obligations by refusing to perform errands before and after certain hours, as well as travel for a client, although the employment contract did not stipulate such obligations, the Court of appeal, which believed it could characterize the employee’s breach of an unstated contractual obligation,

ALORS ON THE OTHER HAND THAN by writings remained unanswered, Mrs Y … argued that she had benefited from the employer of schedules arranged; that not explaining on this means determining likely to demonstrate that the employee had not disregarded its contractual obligations, the Court of Appeal violated Article 455 of the Code of Civil Procedure;

ALORS FINALLY THAT the judge has the obligation to verify the exact cause of the dismissal beyond the statements of the letter of dismissal; that by retaining that the dismissal of Mrs. Y … was based on a serious fault without even checking, as she was however invited by the writings of appeal of the employee, if the cause of the dismissal of which she had made the object did not lie, in reality, in the hiring of Mr. X’s own son … in the position occupied by the employee, the Court of Appeal, which refrained from verifying the exact cause of the dismissal, has ignored the extent of his powers and violated Article L. 1232-1 of the Labor Code.

SECOND SUBMISSION OF TERMINATION

The means reproaches the confirmatory judgment attacked to have dismissed Madame Christine Y … his request for payment of overtime;

FOR THE REASONS THAT “to support his request, Mrs. Y … is limited to pay the debates a handwritten table, drawn up in one piece by itself for the needs of the cause, including the mentions relating to his working hours workforce per week for the period from September 2, 2004 to April 25, 2005 are not corroborated by any other evidence except a certificate from Mrs C …, former employee of the company who supports, in general terms , that in this company the schedules were not those indicated in the employment contract and that the recoveries and leave were nonexistent; that the employer produces the all the shopping schedules during the disputed period, the details of which do not allow a comparative analysis with those produced by the employee; that in the state of the pieces produced by Madame Y … on the basis of its only assertions, the Court considers that this does not produce elements such as to support his request for overtime; that it will therefore be dismissed from its claims in this regard ”;

AND FOR THE REASONS ADOPTED THAT “Mrs Y … asks the sum of 1 182, 10 € gross as such as well as 118, 21 € under paid leave; that Madame Y …, in support of his request, reports a table for the period September 2004 to March 2005; that in application of the employment contract, Madame Y … worked 35 hours per week; she was paid on the basis of 151 67 hours; that it appears according to the accounts it produces, that there could be the weekly modulation; that thus, in October 2004, the week 43 it carries out 45 hours, but the week 44, it carries out only 17 hours 75; that, moreover, week 5 of the months of September 2004, November 2004, January 2005 and February 2005, the schedule is false ”;

ALORS THAN the judge can not be determined in view of the only elements provided by the employee and it is up to the employer to produce elements such as to justify schedules actually carried out by the employee; that based solely on the insufficient evidence reported by the employee, the Court of Appeal, which placed the burden of proof on the employee, violated Article L. 3171-4 of the Labor Code .

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