Cass. Soc., July 10, 2024 no. 23-13.551
The pre-electoral protocol sets out the terms and conditions for organizing professional elections, in particular the date and time limit for submitting candidacies.
In the case in question, the pre-electoral protocol set the deadline for submitting candidacies for the second round of voting at 12 noon on Tuesday November 22, 2022.
However, an employee submitted her candidacy at 12:09 p.m., i.e. nine minutes after the expiry of the deadline. Furthermore, the employee did not bother to specify the college or even the ballot concerned.
As a result, the employer brought an action before the Court of First Instance to have the employee’s candidacy annulled.
The question of the regularity of the candidacy was of particular importance insofar as it was filed 7 days after the employee had been summoned to an interview prior to a disciplinary dismissal…
As candidates in professional elections are protected against dismissal for a period of 6 months, there was a risk that the dismissal could be called into question if the judge deemed the application to be in order.
Surprisingly, the Nîmes Court refused to annul the application.
According to the judges:
– The extreme brevity of the delay in the candidacy had not disrupted the voting process.
– The vagueness of the candidacy was irrelevant, since the employee could only be elected in the college concerned by the vote, and could put forward her candidacy as a titular and substitute member…
According to the Court, the employer had not been misled and had indeed included the employee’s candidacy in the college of permanent employees.
This decision was more than open to criticism, since it was tantamount to considering that the rules laid down in the pre-electoral protocol, negotiated by the social partners, were ultimately of little importance…
The Court of Cassation censured this judgment:
– It points out that the procedures for organizing the ballot, laid down in a pre-electoral protocol whose validity is not contested, are binding on the employer, the trade unions and all candidates taking part in the elections.
– It then ruled that the candidacy was irregular, as it had not complied with the deadline and formalities for candidacy.