Disciplinary dismissal based on private conversation is impossible, court rules

Private conversations between employees, which are not intended to be made public, and are therefore known to the boss, cannot justify approval, the Court of Cassation ruled. With this observation, the court dismissed one of the company’s arguments which related to the mode of obtaining information about the comments.

The conversation was carried out via private messaging between two employees… and discovered by a third person who was doing a shift. Considering she was insulting a superior, the altercation went on to report to management who then fired the author of the comment.

Unreasonable sanction

Knowledge of the conversation was obtained without trickery, unfair or illegal means, the company argued, whose initiative was challenged in court by the dismissed employee. It was achieved because the replacement uses the company’s hardware and its regular user left the private conversation open.

But these circumstances did not matter, the Court of Cassation concluded. It was a personal, private conversation, not intended to go outside this framework and not intended to be disseminated to third parties. It cannot constitute a breach by the author employee of his professional obligations arising from his contract of employment. Hence the sanction is unjustified.

There is no fault without failure of the employee to fulfill his contractual obligations

“The Court of Cassation does not respond to the admissibility of evidence but only classically, indicating that a fact taken from personal life cannot, in principle, justify a disciplinary dismissal, unless the employer demonstrates the failure of the employee. Fulfill his contractual obligations”Me analyzes Diane Reborcier, a consulting attorney in social law at the Auguste Debozy firm.

It also states that private communications that are not intended to be made public cannot breach contractual obligations. However, since the employer did not mention a breach of contractual obligation in this case, it is difficult to know whether the Court of Cassation believed that private communication can never breach contractual obligations or whether the phrase only applies to this matter. question

What follows from public and private is not always clear

“Furthermore, it is necessary to define what constitutes a private conversation. For example, posting a message to a Facebook account – and not an exchange via Messenger – is not a private conversation., adds Mi Diane Reborcier. Thus, in a case known as Petit Bateau (Cass. Soc. September 30, 2020, No. 19-12.058), an employee – bound by a confidentiality clause in her employment contract – published on her private Facebook account that more than 200 fashion professionals “Friends” confidential fashion show photos.

In doing so, the employee revealed photos of the future collection to the contestants. Extracts from the Facebook account were spontaneously communicated to the employer by another employee of the company, who was also a friend of the fired employee on Facebook. The Court of Cassation held that since this evidence was not improperly obtained, and that the publication constituted a breach of the employee’s contractual obligation of confidentiality, dismissal for serious misconduct was justified.