It is far time curved neck and steal words

The employee concerned charges of moral harassment is protected against dismissal, even if the facts are not proven. Only bad faith deprives him of that immunity.

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The outspoken of the employees for their leaders grows. It is far time curved neck and steal words. Today, the name of freedom of expression, employees say out loud what they think all low, whether simple criticism or real charges. Take this judgment of March 10, 2009 (No. 07 - 44 092) between a building contractor and a worker. It is left to go to write to her employer a letter intended to "tell his four truths", the truths previously communicated to the labour inspector. Believed it, the employer would be a character of the black, assisted by a "second" property in his own image. It is a fraudster, making work his workers during their vacations in distorting the remuneration as a premium, and avoids reporting of work accidents in recording as simple diseases. As that which he promoted site, it is a drunkard and a stalker. Is this worker blameworthy The employer, in any case, think, because he dismissed the person as a result of this mail.

The point of view of the judges

The case goes before the Court of appeal of Dijon. The employer is that not only the employee submitted facts without being able to prove none, but, again, that it was him, demonstrate that certain assertions, including that of having made up disease work accidents, were wrong. For him, there is no doubt that these false accusations legitimately dismissal.

The employee, on the contrary, argues that he has refrained from any offensive or defamatory words and that the fact of having denounced irregularities could not justify his dismissal. Dijon give reason to the employer: for them, the employee has abused his freedom of expression.

But the Court of cassation notes that, in this morass of accusations brought more or less to the, there are those two little words: "Moral harassment." However the employee about facts of moral harassment is protected by article l. 1152-2 of the Labour Code. No employee may be dismissed for having testified to acts of harassment. Even if that criticism drowning in others, its presence in the letter was sufficient to ensure the impunity of the employee whose dismissal was cancelled. Astonishingly the employer: the employee merely accuse without proof. The word "testify", or does it not imply that the witness is genuine Of course but this implied requirement of truthfulness does not imply that the witness provides proof of his statements. It is even very exactly what the Act sought to avoid, because the facts of harassment are often difficult to prove. Put the evidence to the burden of the accuser have led to deprive the Act of any efficiency.

Consequences for the company

Thus, merely to make the fateful words of moral harassment would paying-out a string of slander without risking a penalty. Is the employer it really without this risk

No, the parade is the mis en cause in the good faith. The social Chamber has already validated the dismissal for serious misconduct of an employee who had sent to his superior two letters falsely imputing moral harassment and had sued, on the basis of the same charges, the resolution of his contract of employment to the wrongs of the employer (Cass. Soc., February 18, 2003). As to the Criminal Chamber, it also happened to him condemning slanderous denunciations of moral harassment (Cass. crim. June 26, 2007). Must raise the argument, which, in this case, the employer has had refrained.