Facts

On December 15 2015 an employer informed its employee via letter that he would be transferred on January 4 2016 from the human resources department in Differdange to the internal site team in Belval. When issuing this decision, the employer criticised the employee for having violated its internal regulation on the use of the Internet and email.

Following receipt of the letter, the employee challenged the decision and failed to appear at work from January 4 2016 onwards. As such, on January 26 2016 the employer notified the employee of his dismissal with immediate effect for unjustified absence.

The employee initiated various legal actions against his employer, seeking to have:

  • the decision to relocate him declared an improper termination of his employment contract for various reasons; and
  • his dismissal of January 26 2016 declared null and void.

Although the tribunal found the decision to be a substantial modification of the employment contract which was detrimental to the employee, the Court of Appeal had a different interpretation.(1) In light of this difference of opinion, this update explores some of the relevant rules on disciplinary penalties.

Disciplinary transfer or application of mobility clause?

The employer argued that moving the employee from one role in Differdange to another in Belval with no reduction in salary, was not a penalty but merely the application of the contractual mobility clause in the employee's contract.

The Court of Appeal partially followed this reasoning, but added that the terms used in the December 15 2015 letter unequivocally reflected the fact that the transfer from Differdange to Belval had been a penalty.

The employer had therefore used not only its transfer power – as granted by the mobility clause provided for in the employee's employment contract, but also its disciplinary power under the internal regulation – according to which a transfer can be imposed on an employee as a penalty.

Penalty notification period provided for in internal regulation: foreclosure or recommendation?

According to the employee, the employer had not complied with the requirement to notify him of a penalty within eight days, as provided for in the internal regulation. Therefore, the decision to relocate him had to be declared inadmissible.

After confirming that the employer had not respected the eight-day period, the Court of Appeal nevertheless found that the internal regulation did not provide a penalty in case of non-compliance with this requirement. Similarly, reasoning by analogy with the statutory time limits provided for in the Labour Code was impossible, as the code provides only for dismissal as a legal penalty.

The Court of Appeal therefore concluded that, in the absence of a penalty under the internal regulation, the eight-day notification period should be considered a simple recommendation or course of action.

Justified or abusive penalty?

The decision to relocate the employee stemmed from his use of the employer's computer to report his political opinions following the employer's request to respect one minute of silence in tribute to the victims of the November 13 2015 Paris terrorist attacks.

The employee sent an email to a large number of company employees, inviting them to, among other things, consider victims of other attacks and the policies of a number of states that he mentioned.

Can the employee be blamed for exercising his right to freedom of expression, as recognised by case law?

In accordance with the settled case law, the Court of Appeal held that "while it is true that every employee enjoys the freedom of expression, he cannot, under the pretext of this freedom, make comments of a kind likely to harm to social peace or to create a characteristic disorder within the company".

Given the diversity of nationalities and religions present in the company in this case, the court considered that the employer had been entitled to prohibit the use of the Intranet as a political platform in order to maintain a calm social climate within the company. It therefore upheld the legitimacy of the penalty, especially in light of the employee's disciplinary history involving similar incidents.

The employee also failed to provide evidence of his demotion to the status of a manual labourer.(2) Further, the decision did not result in any reduction in salary. Consequently, the court did not uphold the claim of a substantial change in employment conditions to the detriment of the employee.

In light of the above, the court held that the employee's 17-day absence had been unjustified. As the relocation decision had been a regular disciplinary penalty which was valid, legitimate and in no way a modification of the employment contract to the detriment of the employee, the employee should have presented himself to his new workstation.

The dismissal with immediate effect of January 26 2016 was therefore declared regular and justified.

For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email (guy.castegnaro@castegnaro.lu or ariane.claverie@castegnaro.lu). The Castegnaro website can be accessed at www.castegnaro.lu.

Endnotes

(1) Court of Appeal, November 30 2017, 44563.

(2) By not showing up for his new position, the employee had deprived himself of the opportunity to check whether the employer had wanted to assign him manual work, as he claimed.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.