A protected employee who abuses his right of withdrawal may be dismissed for this reason under certain conditions

CE, May 28, 2024, no. 472007

In the case in question (CE, May 28, 2024, no. 472007), an employee delivery driver and staff representative used his right of withdrawal 7 times between January 2 and January 16, 2018, then failed to report to his workstation on January 12, without providing any justification.

The employer applied to the Labour Inspectorate for authorization to dismiss the employee for misconduct, on the grounds that he had abused his right of withdrawal.

The authorities ruled that the withdrawal rights exercised on January 4 and 8 had been abused, and that these elements together constituted sufficiently serious facts to justify dismissal.

The employee representative appealed to the administrative court, which rejected his appeal, and then to the administrative court of appeal, which in turn rejected his appeal. The employee appealed to the Conseil d’Etat, arguing that his right of withdrawal had been exercised legitimately.

According to him

• On the first occasion, the existence of a serious and imminent danger resulted from the fact that his employer had not provided him with a sweater and a T-shirt in addition to his protective jacket and pants,
• In the second case, the employee’s right of withdrawal was justified by the fact that the protective clothing provided was dirty.

In its ruling, the Conseil d’Etat specifies that when the administrative authority receives a request for authorization to dismiss a protected employee for misconduct on the grounds of irregular exercise of his right of withdrawal, it must :

• to determine whether the employee has reasonable cause to believe that the work situation presents a serious and imminent danger to life or health,
• then, if this is not the case, to determine whether the abusive use of the right of withdrawal is sufficiently serious to justify dismissal of the protected employee for misconduct.

In this case, this was the reasoning of the magistrates, who found that the employee had no reasonable cause to believe that he was exposed to a serious and imminent danger, and then, in a second step, considered that the abusive use on two occasions of his right of withdrawal, combined with the refusal to come to work one day without a legitimate reason, was sufficiently serious to justify the dismissal for misconduct of the protected employee.

The Conseil d’Etat thus validated the dismissal and rejected the employee’s appeal.