Social right A HRD considering that his general manager is abusing expense reports informs the office of the association that employs him. The next morning, the Director General (DG), still in post, notifies the HRD of his “Put on leave for eight days”. Convinced that the association’s office did not intend to do anything and that this leave did not bode well for his professional future, the HRD then treats the CEO of “Bandit, swindler and thief” in front of his colleagues.
A few days later, he was dismissed for serious misconduct for having made these remarks. He then seized the industrial tribunal to have his dismissal annulled, on the grounds that he was a ” alert launcher “ and therefore protected by law against any sanction related to his denunciation of criminal acts. The Court of Cassation will finally find him right on September 29, 2021.
The association argued that the HRD was not in good faith: that he could not avail himself of the status of whistleblower, because he had known the facts for many years, which he had moreover validated certain expense reports. According to the employer, he had alerted the office only to obtain legal protection, as he knew his position would be abolished soon.
Not total protection
The Court of Cassation will not enter into this debate. This seems to confirm the trend towards an extension of the notion of good faith. It also shows the reluctance of the courts to examine the more or less avowed motives of the whistleblower. It would therefore be sufficient to have, at the time of the report, reasonable grounds to believe in the veracity of the facts denounced, in the light of the circumstances and of the information then available to the whistleblower.
A previous judgment of the Court of Cassation of July 8, 2020 had also specified that the whistleblower could be in good faith even if an investigation later revealed that he was wrong. It is not excluded that the Court of Cassation anticipated the transposition into French law of the EU directive 2019/1937 of September 25, 2019 on the protection of whistleblowers, which contains this definition of good faith. It is also likely that the law Project currently under review includes this same definition.
It would be wise for the legislator to provide during this transposition that the person who participated in the alleged acts cannot invoke the protection of a whistleblower. In short, even if you issue a whistleblower to harm your employer or to protect yourself against dismissal, you will have the status of a whistleblower. Status which does not however protect against any dismissal, because the employer can separate from an employee for facts distinct from the report.
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