OD FLASH | A public official with union responsibilities must set an example!

CAA Versailles 6 mars 2025 n°22VE01437

CAA Versailles 6 mars 2025 n°22VE01437

In the present case, a permanent staff member since 1992, had been performing union duties as a union delegate since 2019 and was a member of the health, safety and working conditions committee of the social and economic committee (CSE).

During his performance review in March 2019, he made inappropriate comments to his direct line manager while getting down on all fours, stating: “this is what you expect from a supervisor” and “if you were a man, I would lower my pants and give you gloves”.

He later repeated these actions in front of his line manager, lowering his pants and his underwear and adding: “This is the position of a supervisor, all that’s missing is the latex gloves.”.

Given the seriousness of the behavior, the employer initiated disciplinary proceedings and requested authorization from the Labor Inspectorate to dismiss the employee. The labor inspector initially denied the request, but this decision was overturned by the Minister of Labor, who granted permission for the dismissal. This ministerial decision was subsequently upheld by the Administrative Court of Versailles.

The employee then lodged an appeal, considering in particular that the request for written explanations that had been sent to him before his removal constituted a disciplinary sanction, and therefore the subsequent removal did not respect the “non bis in idem” principle. He also considered that the misconduct was related to his union mandate.

The Administrative Court of Appeal rejected his arguments and upheld the legality of the dismissal.

On the principle of “non bis in idem”, the court ruled that the request for written explanations did not constitute a disciplinary sanction. Indeed, according to the Administrative Court of Appeal, this request for written explanations – which the employee is not obliged to comply with – only tends to increase the principle of adversarial proceedings. The administrative judges therefore consider that this request does not prevent the employer from subsequently imposing a disciplinary sanction.

Regarding the seriousness of the misconduct, the Court considered that the employee’s actions were serious enough to justify his dismissal, because “while union duties imply freedom of speech for the person concerned, they also require exemplary behavior.”.

Finally, the Court noted the lack of a connection with the employee’s union mandate on the grounds that he did not provide proof of it.

In conclusion, this judgment reiterates that employees with a representative role are subject to the requirement of exemplary conduct. In the event of a breach, a disciplinary sanction may be considered. This solution, which seems logical, could also be transposed to employees with a representative role in the private sector. It is also in line with the case law of the Court of Cassation, which has long considered that an employee may express his or her disagreement and criticize, provided such remarks remain measured and do not include offensive, defamatory, or excessive language (Cass. soc., Jan. 25, 2000, ^No. 97-45. 044, Cass. soc., May 3, 2011, ^No. 10-14.104, Cass. soc., June 14, 2005, No. 02-47.455, Cass. soc., March 20, 2024, ^No. 22-17.859).