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Case law news: Organization of work and hours of representation

Judgement of the Monaco Court of Appeal of 28 September 2018

The Court of Appeal confirms the validity of a warning issued to an employee representative for being absent from his workstation in the course of his duties, without having first informed his employer.

The organization of work within a company requires that the employer be informed if one of its employees leaves their workstation – even if it is a staff representative.

Depending on the position held, it may turn out to be indispensable to provide for the replacement of the absent staff representative, even for a short time.

Under these circumstances, some internal rules and regulations provide for an information procedure, which may be more or less formal depending on the company.

This provision has its importance insofar as Act No. 459 of 19 July 1947 regarding the status of staff representatives does not provide for any obligation for staff representatives to inform their employer when they are absent for the purposes of their mandate.

By a judgment dated 29 June 2017, the Labour Court validated the warning issued to a staff representative for being absent in the course of his duties, without having previously informed his employer, thus leaving his workstation unattended.

In support of its decision, the Labour Court relied specifically on a provision in the company’s internal rules and regulations requiring staff representatives to inform their employer before leaving their workstation momentarily for the purposes of their mandate.

This provision rightly distinguished the prior authorization to which the employees were subjected to from the obligation of prior information required of staff representatives.

In the present case, the staff representative had left his workstation and the company’s premises without informing anyone in order to contact the Labour Inspectorate, according to his own statements.

The employer imposed a warning, which is contested by the employee before the Labour Court.

In support of his claim, the applicant alleged that in his capacity as staff representative, he could not be subject to any authorization to move or leave work as part of his mandate.

The sanction was validated by the Labour Court, which had found that in leaving his workstation without informing his hierarchy, the said staff representative had indeed failed in its employee obligations, leaving his workstation momentarily unattended despite the obligation to provide prior information stipulated in the company’s internal rules and regulations.

However, the Court noted on this occasion that this requirement for such prior information should not lead the employer to prevent a staff representation from leaving for representation, since such act might on the contrary constitute an offence of obstruction.

This judgment demonstrates the Labour Court’s intention to reconcile on the one hand the protection of staff representatives’ duties and, on the other hand, the operational realities and constraints of the company.

This decision had been confirmed by the Court of Appeal in a judgement handed down on 28 September 2018.

Being now definitive, this decision reminds the employers of the importance of designing internal rules and regulations, which are suitable for the operations of the company.

Focus on internal rules and regulations:

For a company director, the implementation of internal rules and regulations is limited sometimes to fulfilling, willy-nilly, a legal obligation incumbent upon him once he employs more than 10 employees.

This is mistaken. Internal rules and regulations can and must be in the first instance a tool for organizing and protecting the company.

The organization of work, the use of company equipment, the behaviour to adopt in respect of customers, the data protection and the protection of the company know-how are other subjects that should be covered and framed by the internal rules and regulations.  

In order to do this, it is worth considering first the mechanisms and challenges within the business activities so as to define the necessary rules to support them, and to put in place appropriate internal rules and regulations, which should be protective and adapted to the company.

Our Employment Law Team is at your disposal to advise and support you in drawing up internal rules and regulations that are in line with your company’s specific profile and needs.

Authors

Portrait ofSophie Marquet
Sophie Marquet
Partner
Monaco
Florence de Guzman de Saint Nicolas