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In assessing the misuse of mobile phones and email solutions

An employee had been the subject of dismissal for serious misconduct, the employer alleging misuse of professional tools at its disposal (business email and mobile phone). She decided to challenge his dismissal before the Labour Court of Valencia, who by order of January 20, 2010 said the dismissal based on a real and serious but not grave misconduct and ordered his former employer to pay various allowances. The employee decided to appeal this decision holding that the dismissal was not based on fault.

The employer blamed the worker for two mistakes: the misuse of corporate email for personal use and misuse of mobile phones available to him.

Regarding the misuse E-mail, the employer blamed the worker for having sent an email to his supervisor on "One would need a leader like him," accompanied by an attachment reproducing various remarks about the Immigration attributed to

Australian Prime Minister. The employer considered that this message was " contrary to its values and its image and at the same time denounced the use of corporate email for personal . For its part, the employee explained that " accidentally forwarded it to his supervisor the message was intended for an acquaintance, that the employer does not dispute, moreover .

The Court of Appeal ruled that " reality of the error is determined by the formulation transmission of the message which is: 'Hello Jean-Jacques, These are the thoughts of my father. Everybody's promised land. " .

Also:

"Whereas on the one hand that nothing in the rules of the company prohibits employees from using their work email to send or receive personal messages ;

he can not therefore be accused of having an employee to follow the third message she had received from his father

it is irrelevant in this case as a result of an error, the message has been sent to the business address of his supervisor, while the latter is in no way concerned or affected by the message "

And even if the employer" judge message content intolerable or outrageous and contrary to its values, the fact remains that despite the error transmission, it is a private message that it can not state . "Under these circumstances, the judges felt that the complaint made by the employer is not serious.

Regarding the misuse of mobile phones, the employer says " the phone bill was $ 534.77 euros for the month of August 2008 and estimated that this sum, more than 230 euros' correspond to calls Personal "without however producing any statement corrobant his assertions.

However, the employee admitted using his work phone" during his movement in Egypt in August 2008 as has been obliged to join his ailing father . "For the judges," this relates in any event be serious and urgent cases in which the ; Rules of Procedure authorizes the use of the phone business for private "

importantly, the Court observed that the employer had not provided SIM card relating to the subscription business phone, the employee was forced to to itself the acquisition of a mobile phone for the price of 189 euros.

Therefore, the judges believe that

"Whereas a business that requires an employee to purchase an equipment for professional use, is unwelcome to say the least to blame the same employee, personal use unencrypted moreover, its telephone subscription.

The Court of Appeal considers that the dismissal was without any serious cause. It condemns the employer to pay 45,000 euros to the employee unfairly dismissed and the reimbursement of unemployment benefits paid for 6 months.

Source: CA Grenoble, 22/11/2010, Catherine X c / SAS BCBG Max Azria Group (unpublished)

Author: Benoit Tabaka - http://tabaka.blogspot.com