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18 October 2019
The Labour Councils are putting up a fight!
The Grenoble Industrial Tribunal, in a ruling issued on July 22, 2019, refused to align itself with the position of the Court of Cassation, which had concluded on July 17, 2019 (Cass. opinion, July 17, 2019) that the compensation scale for dismissal without just cause was compatible with Article 10 of Convention No. 158 of the International Labour Organization. Convention No. 158 of 1982, ratified by France on March 16, 1989, concerns termination of employment at the initiative of the employer. Article 10 provides: "If the bodies referred to in Article 8 of this Convention conclude that the dismissal is unjustified, and if, taking into account national law and practice, they do not have the power or do not consider it possible in the circumstances to annul the dismissal and/or to order or propose the reinstatement of the worker, they shall be empowered to order the payment of adequate compensation or any other form of reparation considered appropriate"..This principle is found in Article 24(b) of the revised European Social Charter of May 3, 1996. Lower court judges, including the Grenoble Industrial Tribunal, resisted the Court of Cassation's ruling. To award higher compensation than would have been due based on the Macron scale, the Grenoble Industrial Tribunal judges invoked the provisions of Article 10 of the ILO Convention, which stipulates that compensation must be commensurate with the former employee's situation. In this case, the employee was awarded €8,000 in compensation for breach of the employer's duty of care. The employee had been subjected to workplace harassment. She was receiving treatment and was being prescribed anxiolytics and antidepressants. The judges took this context into account when ordering the payment of higher compensation, which they considered more in line with what she had experienced in the workplace. Two important points emerge from the analysis of this judgment: – The lower court judges demonstrated resistance to the position of the Court of Cassation, which upheld the Macron scale, – An employer's failure to meet its safety obligations in cases of harassment can be costly. Employers, the Macron scale is not uniformly applied by all Labor Courts. Seek information and support in implementing effective measures to protect the health of your employees.
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