An employee may not be dismissed for having requested a professional election

An employee, hired as a waiter, asks his company to organize professional elections.

Following his request, he was called to a preliminary dismissal interview, with a precautionary layoff, and finally dismissed for serious misconduct a few days later.

On the ground of trade union discrimination and challenging the validity of his dismissal, he brought an action before the prud’homale court for annulment of the dismissal, reinstatement and payment of salary reminders and various allowances.

In order to claim that his dismissal for trade union discrimination was invalid, the employee relied on the coincidence between the receipt by his employer of the letter requesting the organization of professional elections and the initiation of the dismissal procedure.

While both the Cour d’Immale and the Cour d’appel consider that the dismissal was not justified by the existence of a real and serious cause of action, they do not declare the dismissal invalid on grounds of trade union discrimination. They consider that the employee did not adduce any factual evidence suggesting the existence of such discrimination.

The Court of Cassation quashes the decision of the Court of Appeal.

It recalls first of all the principle according to which ‘where the facts relied on in the dismissal letter do not characterize a genuine and serious cause of dismissal, it is for the employer to demonstrate that the termination of the employment contract does not constitute a retaliatory measure to the employee’s earlier request to organize professional elections within the company’. It then states that, in the present case, the employer had not demonstrated that there was no link between the employee’s request to hold the professional elections and the dismissal, in the present case, less than one month later.