When the deficiencies of the contradictory investigation […]

CE 25 November 2022 n°459127 "If starting a dismissal procedure against an ordinary employee is not easy, considering the required formalism, this procedure is not comparable to the dismissal of a protected employee, which requires the intervention of the administration, and leads to be confronted with situations sometimes prejudicial for the employer..." This is the main interest of the following decision which, in addition to recalling the essential rules relating to the procedure for dismissal of a protected employee, highlights the essential role of the labor inspector, whose possible failures may irrevocably affect this procedure. Indeed, for the record, an employee benefiting from this exceptional protection cannot be dismissed without the employer's agreement. Thus, once the latter is seized of a request for authorization to terminate the employment contract of a protected employee, the so-called contradictory investigation phase begins. On this occasion, the employer and the employee can put forward their arguments on the basis of which the labour inspector will render his decision to authorize or refuse the dismissal. The administration must therefore determine whether the acts of which the employee is accused are sufficiently serious to justify his dismissal, taking into account all the rules applicable to the employment contract of the person concerned and "the requirements specific to the normal performance of the mandate with which he is invested". However, the role of the labor inspector is not limited to a simple examination of the reasons for the dismissal, since he must, during his investigation, and on pain of having his decision annulled, ensure the respect of the adversarial process between the parties. This is the major contribution of the Conseil d'Etat's decision of November 25, 2022, which, without being new, reminds us of one of the requirements weighing on the administration. Focus on the latter. 1. The facts of the case An employer submitted a request to the labor inspector for authorization to dismiss a protected employee, since the latter's protection stemmed from his candidacy as a member of the CHSCT. Thus, within the framework of the contradictory investigation carried out by the administration, the employer provided the latter with bailiff's reports in support of the alleged grievances and thus justifying the envisaged measure. It is in this context that he was received, as was this employee, twice, by the labor inspector, during interviews in which he shared his observations with her on these so-called bailiff's reports. However, at the end of this investigation, the labor inspector communicated them to the employee at the same time as her decision to authorize the dismissal, so that the employee was not in fact able to take cognizance of them or to comment on them, for lack of time to do so. The investigation having been closed, the administration's decision authorizing the dismissal had clearly been made in disregard of the adversarial principle. As a result, the aggrieved employee appealed to the Administrative Court for misuse of power against this decision, the procedural ups and downs of which brought the case before the highest court of the administrative order.   2. Decision of the Council of State Not surprisingly, the High Court before which this appeal was brought recalled in its decision the importance of respecting the adversarial process within the framework of the investigation carried out by the administration, which was obliged, in this case : "inform the employee concerned of the conduct complained of and the identity of the persons who testified to it." It emphasized that in the context of this investigation, the employee should have been able to consult all the documents produced by the employer in support of his request:

• It emphasized that in the context of this investigation, the employee should have been able to consult all the documents produced by the employer in support of his request:
• on the other hand, without the fact that he is likely to know the content of some of these documents exempting the labor inspector from this obligation.

The Conseil d'Etat thus specified that the only exception to the principle of free access to documents, such as testimonies, was the hypothesis that such consultation would be likely to cause serious prejudice to their authors. inform the protected employee, in a sufficiently detailed manner, of their content". The court therefore annulled the decision of the labor inspector who had authorized the employee's dismissal.   3. The scope of this decision If through this decision, the Conseil d'Etat takes up a principle already stated on the access of the employee to the documents produced by the employer, and conversely of course, it must be noted that this is not the only contribution of this decision since the employer in the circumstances of this case finds himself dependent on the consequences of a failure by the Administration, which is necessarily prejudicial to him since he :

• finds itself obliged to reinstate an employee whose breaches required the termination of the employment contract,
• and to pay the latter all salaries due since the dismissal pronounced under the terms of the irregular decision (with the possibility, however, of suing the State to demand reimbursement of all or part of it).

The employer is therefore responsible for verifications that are not - or should not be - within his competence, as he must ensure that the labor inspector has respected the adversarial process during his investigation, on pain of having the dismissal authorization cancelled. The employer must therefore retain from this decision that he must not remain inactive with regard to the procedure initiated by the Labour Inspectorate, by remaining attentive to the progress of the latter, having in a way to ensure an a posteriori control, when he can, of the missions inherent to the administration, if he wants to ensure the regularity of the decision which will be given. This is a somewhat aberrant situation, however, in terms of its consequences. Indeed, we are faced with an employee who has committed a really serious fault (without which the inspection would never have given its agreement to the termination) and who returns to the company to once again cause chaos by his attitude, creating an anxiety-provoking climate for both the management and the employees who testified against him. Here again, as we often raise, shouldn't the texts be modified? Is it unthinkable to imagine that in a "healthy" society the simple consequence of such an administrative failure would be that the State would directly pay financial compensation to the employee concerned? And nothing else? Of course, one can be shocked by the obligation to compensate an individual who has committed a really serious fault under the pretext of a procedural defect. But between the evils, this situation will always be much more beneficial than a reintegration with simply catastrophic effects. Especially when, at the same time, companies are told to protect the health of their employees and to do everything possible to avoid psychosocial risks. Fire and oil have never gone together.