The conflicts that animate the prud’hommes reflect, every day, our social history. The trial is public. Regularly, a journalist for The Express purpose of attending the debates.
Paris (conseil des prud’hommes, trade section, November 14, 2018 at 13: 30 pm
Assisted by a counselor and two counselors, the president calls upon the counsel of Mila (1) and his ex-employer, a restaurant that belongs to a chain of fast food restaurants.
The president : It is a dismissal for incapacity ?
The lawyer of Mila (1) : Yes. I ask the council to recognize as the principal for the dismissal void, or in the alternative, without cause real and serious. I am claiming 20 000 euros for dismissal void or without cause real and serious, and in any case 2320 euros of compensation for notice and 232 euros of paid leave related, 1160 euros for non-compliance of the procedure of dismissal of 20 000 euros for breach of the duty of training, € 20,000 for discrimination association and 2500 euros to article 700. I represent a trade union, as intervener to the proceedings, which calls for 10 000 euros in damages and interest to the collective interest of the profession and 2000 euros to article 700.
The president (counsel for the employer) : claims for you ?
The lawyer of the employer : 2000 euros to article 700 for madam, 2000 euros to article 700 for the union.
The president : To you, master. The council is listening to you.
The lawyer for Mila : My client has been hired as a fellow versatile, with an average salary of 1160 euros and the collective agreement of fast food. It is designated as a steward between 2011 and 2015. She is dismissed for incapacity on 9 November 2016, with the impossibility of reclassification.
If we are in front of you today is to discuss the real problem of discrimination, of association, as for eight years, she takes care of the fries without moving. She has never had any formal training. However, there is an arsenal of possibilities at the disposal of the employer to change an employee.
TESTIMONY >> “on her return from maternity leave, she discovers a folder to load its name,”
When one is faced with a total absence of evolution, or training, the case law is very clear : this is discrimination. Here, it is the discrimination of association. Since 2010, my client has requested training and promotion : all of his colleagues, without exception, have changed, but not her. What is it that explains objectively that she has had no evolution ? I have done simulations in every sense. From the beginning to the end it is level 1, level 2.
The president (counsel for the employer) : Your answer ?
The lawyer of the employer : What is the training requirement ? The employer must ensure the ability of the employee in his employment and he made him do training.
The lawyer of the Milah (the cut) : Be specific, brother. When my client, still in position, you has asked a question on this point, you’ve responded that”between 2015 and 2016, you received fifteen minutes of training on hygiene”. Two times fifteen minutes.
The consultant : Two training courses of 15 minutes, this is short, non ?
The lawyer of the employer : These are formations of fifteen minutes, but that are pragmatic and in connection with his profession, that is to say, of hygiene, safety and knowledge receive from the public. She is a fellow versatile, I’m not going to train as a plumber ! For the Dif [individual right to training], she asked for the “agent stop”. We refused and this is normal, this is not in relation with his job.
The president : Why hasn’t it changed ?
The lawyer of the employer : everyone wants to be a chef, but there was only one ! We look at the abilities of each. There are criteria to evolve and be promoted. The employer was well explained. Madame does not have the skills for the position of team leader. How dare you talk to me about discrimination union ? I am very surprised that you raise this argument totally outdated. There are good relations with the trade unions with us. I discriminated against him, giving him the bonus ? She passes the assessments, she gets bonuses.
The president : On what basis ? Numerical results ? Of speed of execution and productivity ?
The lawyer of the employer : The “quality” is at the discretion of its managers. If I had wanted to discriminate, I would have done on that basis. This is not because it is unionized that it has special privileges. You must work and be assessed like any other. If she tells me that she has had no career development, she proves it.
The lawyer of Mila : The employer is totally biased in regard to the evolution of employees. At a meeting of delegates of the staff, my client asks the question. The employer replied : “We decide and choose our own employees to evolve”. It is preposterous.
An advisor : she had interviews professional title of his career and the title of his mandate trade union ?
The lawyer of the employer : of course. In 2014, it had required an evolution as the team leader. She has not had.
an advisor : How much do you have team leaders ?
The lawyer of the employer : Three, because we have day, evening and weekend. The organization is particular.
STORY >> “The company pays a training and calls for 110 000 euros”
The same advisor : What are the conditions to switch team leader ?
The lawyer of the employer : It is based on the evaluations of the candidate. Hers were not good, but she has refused a post as a cashier !
The lawyer for Mila : She has refused because that is exactly what she was doing as a fellow versatile. To accept it would have masked the deficiency of the employer. In reality, the unionization of my client poses a problem when it advocates for putting in place an SIU [economic and social unit, ed.], she wants THIS [enterprise committee] and a local. She appeals to the labour inspectorate, which is unacceptable for this american empire.
The president : Can you explain your other applications ?
The lawyer for Mila : Her last day worked is September 2, 2015. Then, up to his incapacity, she is depressed, broken-hearted. His state of health has deteriorated in a work atmosphere where his only prospect of change was to make the fries. For me, his incapacity is the result of his working conditions. This is why I request a redundancy payment doubled.
The lawyer of the employer : No causal link on its state of health worsened with the original professional. There is nothing.
The lawyer for Mila : About reclassification, it was not even referred to on his letter of dismissal. It does not even bother to tell us that it is impossible.
The president : This restaurant is a franchise ?
The lawyer for Mila : Yes, but factually it is a group. The staff has been trained in the same way, people are interchangeable between the different restaurants and there are also administrative positions.
The president (counsel for the employer) : A last word ?
The lawyer of the employer : You débouterez on all counts of requests, including the notice, because the incapacity is not of occupational origin, it has been licensed to date immediately, without prior notice, as provided for in the act.
The president : How old is madame ?
The lawyer for Mila : 39 years old at the time of termination. And she is always in search of employment.
14: 45. The chair : the debate is closed.
Verdict, on January 31, 2019. The board reclassifying the dismissal of Mila demerit dismissal void. The employer is ordered to pay to 2320 euros in lieu of notice and 232 euros of paid leave related, 6960 euros for dismissal null and 1000 euros to article 700.
the basis On which the dismissal null is it based ?
The dismissal is declared null and void on the basis of article L 1132-1 of the labour code. In the matter between Mila and his employer, the advisors labor processes have recognized the discrimination of trade union of the employee and awarded six months of salary, as required by the law (article L 1235-3-1 of the labour code).
On the career stagnation, three judgments of the Court of cassation in 2016 have given reason to the employees who were discriminated against for reason of association (April 6, 2016, appeal n°14-23938).
As to the proposal of a position of cashier, which would be an evolution, a claim that calls into question Mila, the court of cassation has also given them reason to be an employee in a folder close: “The employer wanted to assign it in a position where it is not established that it corresponded to his skills, which was of a nature to imply the existence of discrimination trade union” (September 20, 2017 (appeal n° 16-13925).
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“Her replacement is already in place so that it has not yet been fired,” “His superior asks him to come to work even when he is sick” “It is a mistake of the HR department, you must reimburse”
(1) The name was changed.