Following the contamination of the company's computer with a virus, an employee had been dismissed for gross misconduct on the ground that "gross negligence also results from his failure to notify his supervisor or department where computer technology has seen the first viruses . The employee decided to challenge this sanction before the industrial tribunal of Versailles redesignate the fault "simple negligence" by decision dated November 3, 2008.
The employer appealed the ruling. The employee, meanwhile, challenged cause of contamination of the computer network of his employer.
The Versailles Court of Appeal noted that " the dismissal letter of 26 September 2003 is the deterioration of the computer system of the company, 26 August 2003, following a very substantial invasion of keeping viruses out of usage, network engineers have determined that the cause came from Internet access to sites with pornographic by one employee, that research has determined that the virus came from the machine Mr. X. He is still criticized for being connected to banned sites during work hours, to have infected the whole network, not using an anti-virus or adapted warned his superiors and professionals can overcome this accident .
In terms of evidence, the judges point out that " all documents produced by the ISD establish the facts undisputed, namely the use of work computers to view pornographic sites, and the spread of a virus leading to anomalous diffusion of messages as of August 24, 2003 . The origin of this spread is certain thanks to the identifier that links these uses the computer to Mr. X. Including certificates from department show that each computer user has a personal access code "
However, the Court of Appeal of Versailles recalls the case for an employer to dismiss an employee for gross negligence
"In law, gross negligence is committed by the employee with the intent to harm his employer or business; the misconduct results from a fact or set of facts attributable to the employee constitutes a willful violation of its obligations under the employment contract or working relationship of such importance that it makes it impossible to maintain the employee in the business for the notice period, the employer must prove the existence of such misconduct, after having set in the dismissal letter, the terms set the limits of litigation. "
The judges therefore believe that" parts do not characterize the intent to injure the employee, his statements to police, reinforced by the audit report of the computer speaker, revealing instead that the virus was done in a few days and that Mr. X had advised the department that received an abnormal number of messages " .
Especially, " the summary table produced by the ISD for only the period between June and August 2003, and it confirms the high rate of downloading from the computer of Mr. X, it also reveals the existence of downloads after his layoff, and a high rate of downloads in the society, including during the months of July and August 2003, during which Mr X was absent for several weeks "
Thus, the Court of Appeal of Versailles," the Labour Court of Versailles was a fair assessment of the facts stating that it was not established that he voluntarily introduced computer virus with the intention to cripple the corporate network, that in good faith, being a service company computer, he might have thought itself immune from such an infection and that the consultation website on the workplace during working hours, was likely to be a real and serious cause for dismissal .
The Versailles Court of Appeal confirms that the dismissal of employee was not justified by gross negligence, but a real and serious cause (simple negligence).
Source: CA Versailles, 23.11.2010, SAS Engineering Development Department c / X (unpublished)
Author: Benoit Tabaka - http://tabaka.blogspot.com 
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