Dans cet article, l'auteur procède à une étude des règles juridiques qui précisent la protection dont bénéficie le salarié congédié à cause de l'exercice d'un droit qui lui résulte duCode du travail. Cette analyse est l'occasion d'identifier certaines failles et de proposer quelques modifications ; l'auteur s'interroge plus particulièrement sur l’opportunité d'assujettir ce congédiement à la technique de l'autorisation préalable avant de congédier.
Quite recently, the C.N.T.U. and the C.E.Q. proposed that the employer be obliged to obtain an authorization before firing (or discharging) someone when union activities are in cause. This article examines the advantages of such a mechanism.
In the first place, the author studies the legal co-ordinates that precise the meaning and the scope of the protection from which benefits the salaried employee discharged following the exercise of a union activity. The investigation commissioner (or trial examiner) has jurisdiction to hear the salaried employee's complaint. The Labour Court intervenes in case of appeal only. The protection affects only salaried employees in the sense of theLabour Code. It covers any type of breach of the labour relation, temporary of final, transfer or demotion, that is caused by the exercise of a right resulting from the Labour Code. This protection allows the salaried employee to obtain a reinstatement order in his job as well as an order of payment of a compensation. The said compensation covers a period going from thedate of the dismissal to the date constituting the 8thday after the signification of the commissioner's decision ordering the reinstatement unless an appeal to the Labour Court had taken place, in which case the compensation stops running 8 days after the decision of the court has been rendered. As far as the reinstatement of the salaried employee is concerned, nothing in the code is foreseen to assure the effective reinstatement of the salaried employee.
The salaried employee who wants to file a complaint for union activity discharge must follow the procedure foreseen in theCode. He can at the same time ask a judge of the Superior Court to issue an injunction ordering the employer to maintain him in his job as long as the commissioner has not rendered his decision on the value of the complaint. The commissioner in charge of the complaint will have to decide whether the ground brought forward by the employer to impose a discharge or a disciplinary measure is justly and surely founded or whether the employer's act is motivated by the exercise of union activity only. The employer has the burden of proof as long as the salaried employee can establish the constituting elements of the presumption he benefits from. The commissioner must find out thecausa causans of the decision taken by the employer. If this cause is not the exercise of a right that results from the Code, the complaint must be rejected. The commissioner cannot modify the disciplinary sanction taken by the employer even if the latter is not proportional to the committed fault. If the cause is the exercise of a union activity, the commissioner orders the salaried employee's reinstatement and payment of a compensation.
When the employer refuses to give effect to the commissioner's decision, the salaried employee can obtain the payment of the compensation but cannot force the employer to reinstate him. In such a case, the employer is subject to a penalty (fine or ducking).
In the second part of the article, the author suggests certain modifications to assure a better protection to the salaried employee. After having outlined the advantages and drawbacks of the idea to force the employer to obtain an authorization before dismissing someone, the author supports that the mechanism set forth by the C.N.T.U. and the C.E.Q. cannot be fulfilled in the Labour Code. He explains the main reasons supporting his position and suggests that the faults disclosed in the mechanism of protection should be corrected by more operational techniques.
Among the different suggestions put forward, the author insists more particularly on the idea of an order of maintaining the salaried employee in his job, which order would be issued by the commissioner and would last until his decision has been rendered on the merit of the case.
Consequently, instead of forcing the employer to ask the authorization to dismiss an employee, the salaried employee would decide himself whether he wants an order to be maintained in his job and whether he wants to deposit a complaint for dismissal because of the exercise of a right resulting from the Code. Furthermore, the author recommends that the payment of a compensation indemnity be abolished and replaced by a penalty compensation. Moreover, he suggests that the forced reinstatement of the illegally dismissed salaried employee be made possible through an appropriate technique.
In his final conclusion, the author insists on the fact that the legal frame cannot bail, even indirectly, an illegal dismissal. This situation does exist presently.
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