Can a cashier be fired for stale foods?
A cashier at a Lille supermarket was dismissed last month for serious misconduct after taking “five loaves, two baguettes and two slippers” from the store.
” On May 6, I left the store at the end of my service. I closed the store with the security guard. I was on the sidewalk when two directors appeared and asked the agent to control me , “she said in the newspaper La Voix du Nord.
The employee assures that the baguettes and pastries she had brought were “destined to leave the dump”.
The complete facts are not known; in particular, it is not known whether it was an isolated act or whether the employee had previously committed similar acts; Similarly, it is unclear whether there was any tolerance on the part of the employer for the carriage of products at the end of the sell-by date (which is different from the use-by date) or well if such a practice was strictly prohibited as is generally the case in the food trade for obvious reasons of safety for health.
On reading the information published in the press, the employee does not appear to dispute having taken these foods without authorization. She states that she used the bakery department with an estimated damage of “16,20 euros”, but justifies her act by the fact that these goods were in any case destined to be thrown away (they were undoubtedly in the limit date of sale ).
- In other words, can we consider that an employee commits a fault justifying his dismissal for serious misconduct since the material damage resulting from his act is non-existent (the expired product can no longer be sold) or very small?
In principle, theft committed by an employee to the detriment of his employer is a serious fault, that is to say a fault that justifies the immediate termination of the contract without execution of the notice (constant case law).
No matter the small value of the stolen goods ( Cass Soc., February 20, 1986 n ° 82-4360 9: pair of laces in a supermarket, Cass., Company June 30, 1998 n ° 96-42566 : theft of bottles of alcohol by a waitress at a restaurant: Cass., 16 January 2007 n ° 04-47051 : theft committed to the detriment of a client of the employer).
But in certain circumstances, the judges consider that the theft is not a serious fault:
– Theft of a bottle of wine by a cook who had never been the subject of any warning or any other disciplinary sanction ( Cass, 16 December 2003 n ° 01-46069 );
– Theft of a pipe and pieces of meat from the remains of a meal ( Cass Soc., December 16, 2003 No. 01-47300 ).
– the theft of the recipe corresponding to the fitting of two tires by a head of an agency: ” the isolated act of the employee, which justified a seniority of more than ten years was not likely to make it impossible to maintain it in the company “(Company Cass April 6, 2011 No. 10-15286 ).
Labor court decisions are therefore fluctuating: judges have a case-by-case assessment of the seriousness of the fault, according to different elements: seniority, age, absence of disciplinary history, etc.
In this case, the employee was dismissed for serious misconduct after 36 years of service and the Labor Court of Lille, which she claims to want to seize, will have to judge whether the facts committed constitute serious misconduct.
In a case similar to that of Lille, an employee of a supermarket Lidl had been dismissed in 2012 for serious misconduct after eating a chocolate cake without paying . Considering her dismissal disproportionate to the alleged facts – facts that she did not recognize – the cashier had seized the industrial tribunal of Nancy, which had granted her request and sentenced her employer to pay him 8 800 euros in damages and interest in addition to 7,000 euros for miscellaneous indemnities (severance pay and notice).
It should be remembered that serious misconduct is defined by the Cour de Cassation as the fault that makes it impossible to keep the employee in the company (Cass, September 27, 2007, No. 06-43867). It deprives the employee of severance pay and notice indemnity. However, he receives the compensatory indemnity for paid leave corresponding to leave earned and not taken. Depending on his situation and his unemployment rights, he is entitled to receive the return to work allowance.