“I approved the main part of the indictment”, loose one of the three lawyers of the CEO, Didier Lombard, “but you were wrong, Mr. Advocate General, to consider that the State had no responsibility . He has [au contraire] a major responsibility. The same believes that at the time of the implementation of the Next plan, his client found himself “in an unmanageable situation”, and “prisoner” of political decisions. To the point that, according to him, “it’s not [vraiment] Lombard who manages the company”, but rather “the minister”. Her colleague underlines for her part that the defendants are reviewed for acts committed “during 2007 to 2010”. However, the two “original sins” attributed to his client, namely the announcement of 22,000 redundancies and the remarks made during a seminar for senior executives, date back to 2006: “The only two facts concretely reproached to [Lombard] after thirteen years [de procédure], they are prescribed, they are beyond prevention, and they do not constitute acts of moral harassment”. On this point, during the requisitions of the previous week, it was considered that the CEO had subsequently continued to give “instructions”. A reasoning which was based, among other things, on the handwritten notes taken by a member of the management committee, with in particular several occurrences of the expression “putting pressure”. The lawyer says she spent “three and a half hours” rereading them, without “finding anything resembling an instruction”.
His last lawyer observes that, “to compensate for this lack of evidence, we play on the focal lengths, and we come to give a general dimension to individual situations. But it does not work “. He continues on the multiple psychosocial alerts: “Obviously I am not saying that he knew nothing. Yes, he could have been warned of certain tragedies. “Before tempering:” After the fact, it is easy to take this or that element for an oracle, but in the daily maelstrom, it is infinitely more complicated. […] We are unable, in the messages transmitted by the unions, to distinguish strong signals from weak signals, we have no hierarchy. He disputes the combined reading of judgments of the social and criminal chambers made by the civil parties and the general attorneys, then adds: “You will have to interpret the law, it is obvious, but this interpretation can only be done in respect for the other principles that govern criminal law. He cites or evokes those of legality, predictability and intelligibility, and finds that “to condemn for institutional moral harassment without any interpersonal link […] would be a violation of Article 7” (of the European Convention on Human Rights).
On the side of the defense of Louis-Pierre Wenès, the “number two”, we mock the concept of “industrial moral harassment”. “I would speak for my part of evanescent moral harassment”, launches a first lawyer, who explains having found only one judgment, and largely posterior to the facts, on what he paraphrases as “perverse management techniques at the ‘against all the employees’ of a company. Before questioning the crowd: “Who in this room has already managed 80,000 people? The second lawyer for Wenès begins to read a press release from the Sud-PTT union. It is about suicide, “suffering at work”, “distress”, “working conditions [qui] have continued to deteriorate, mainly because of the deflation of the workforce”, and a “blindness of the company”. It spares its effect, but ends up specifying that it dates from June 6, 2022. On the maximum amounts incurred (1 year and €15,000), it considers that “if [le législateur] had wanted to sanction what is submitted today to your court, he would not have foreseen this type of penalty”.
“We cannot make divination a duty”
She sees in this procedure a form of “trial balloon to change the law”, but adds that her client is “not a punching bag”. “There was indeed suffering in this society”, she continues, “but I think this suffering was extremely old”. According to her, it is “privatization” that is at the origin, in that it has led to the creation of a “legal monster” causing workers to live together under several statuses: “They try to tell us that it was a policy that lasted three years that would have triggered it… It is not reasonable. “I would like to say two more things to you at the outset,” she blurted out after more than an hour of argument. She tries to demonstrate that the objective of 22,000 departures was perfectly tenable without resorting to any harassing process: “It was not impossible, [donc] the cellphone, [également] having become a constituent element of the offence, it no longer exists. She adds: “maybe there were people who were subject to individual harassment by their manager, [et] it is quite abnormal. […] But that has nothing to do with a desire to harass. In short, “I think he was sacrificed on the altar of this crisis”.
The first lawyer for Brigitte Dumont, director of everything and nothing, points out that, “when one carefully reads the judgments referred to in the ORTC and the judgment, [ils ne portent que sur] interpersonal relations in SMEs, [et pas] groups of tens of thousands of people. If it were to be otherwise, “it would come down to the possibility of penalizing […] a business leader from the moment he implements a reorganization or a job protection plan (PSE), which inherently leads to anxiety”. And even if it were now the case, “at the time of the facts, no jurist, no lawyer would have indicated to his clients the risk of institutional moral harassment in the context of a reorganization”. The second lawyer of the same considers that, in particular on the training of managers or the note on the variable shares of some of the latter, her client “is not pulverized by the file, quite the contrary”. On the intention, she emphasizes “the lack of predictability of the offense of institutional moral harassment”, considering that “one cannot make divination a duty”. Before explaining that, “in the file, you will not find a word [de Dumont] aimed at destabilizing anyone”.
On the side of Nathalie Boulanger, director of territorial actions, we concede: “She recognizes a moral and human responsibility”. On the screens, the PowerPoint presentation brings together two provisions relating to moral harassment, to illustrate what he describes as a “veil of legislative ignorance”. On the left, that of the labor code (art. L. 1152-1); on the right, that of the penal code (art. 222-33-2). The lawyer asks: “How can the average citizen, who is not supposed to be ignorant of the law, know […] where does social law end and where does criminal law begin? In subtext, we understand that the coexistence of provisions in two codes would therefore imply demonstrating the awareness of specifically violating the one of the two which then founds the action, here the second. Moreover, he considers that “penalizing everything amounts to making social law disappear”. However, at the time, “nobody talks about criminal law, it doesn’t come to anyone’s mind”, since the right to alert in the CNHSCT, for example, was based exclusively on notions of social law, just like the articles press, at least until September 2008. The lawyer adds that, when two unions created the observatory of stress and forced mobility, they precisely underlined that they lacked a tool to take the measure of the situation : Boulanger could therefore only be in the same ignorance as them.
“We have often put words on trial”
Guy-Patrick Cherouvrier’s lawyer, HRD France, recalls that “only 77 situations of suffering are brought to the attention of the investigating judges, […] and only 39 are retained. […] That’s 0.03% company-wide.” It thus excludes the constitutions of civil parties directly before the criminal court, but also before the court, and whose admissibility was disputed in May (attached to the merits). The Advocate General had for his part retained the nearly 2,000 compensation files presented to the company’s compensation commission, but she objects on the same ground that “it is 1.3% of the payroll [sic] “. She denounces a “lame procedure” and a “dressing”: “We needed accomplices for there to be perpetrators. “He is deeply hurt and unhappy about this suffering, […] but he is not guilty of it”, she adds: “the policy of the defendants is not the cause of this suffering”. According to her, “we come […] reproach him for not having resigned, but where is the positive act in the fact of not resigning? And why are all the executives who have not resigned not notified? She explains that he “made a point of devoting a huge part of his time to informing and consulting staff”. And adds that his client “did not know, did not see that there was a general malaise”, which was rather disputed so far.
After stating that an act of complicity “must be prior to or concomitant with the offense committed”, the first lawyer for Jacques Moulin, territorial director, considers that his conviction at first instance was essentially based on “his good results. […] But a result is not a fact, and moreover, it is necessarily subsequent to the offence”. Then he explains that his client is often put “on trial of the words” that he would have written or spoken (” low performer », « positive destabilization », etc.). He sees in it an approach comparable to that of the sentence attributed, no doubt wrongly, to Richelieu: “Give me six lines written by the hand of the most honest man, I will find enough to hang him.” “The second lawyer for Moulin also returns to words, but these are the ones he has heard in recent weeks in the courtroom, and we lose the thread a little: the defendants would not be “abnormally normal”, but “normally abnormal “. That is. Still, he considers that the Advocate General has not found the shadow of a positive act of complicity. More broadly, he lends the public prosecutor the following reflection: “We have Moulin, well, we will do with Moulin. Stresses in passing that very few of the latter’s counterparts were heard in the proceedings. And that, when he was subsequently appointed HRD, if the trade unions agreed to speak with him, it was in essence that he should not have had such a bad reputation.
At the end of these almost forty half-days of hearing: last words. Lombard has “two small points that [lui] take to heart”. The first consists of “telling you again all the emotion that gripped me […] listening to the [paroles] of certain civil parties. […] I will remain, personally, marked for life. The second, to “draw from these discussions the impression […] that some of them have started a process of reconstruction. […] I think it would be extremely good for the France Telecom community”. For his part, Wenès adds that the trial brought to light “many political issues, […] of civilization [et] of power”, and laments: “After ten years, I am still being treated as a cold, calculating, liar man who throws his teammates overboard. […] It hurts my identity, and I see no evidence to support such comments. Conclusion of the president: “There will inevitably be dissatisfaction on reading the judgment to come. According to her, whatever happens, the defendants will have been “sensitized to the psychosocial risks”. To the victims, a term whose etymology she recalls, she finally addresses: “I call on you not to be defeated, whatever the judgment rendered by the court. »
Deliberated on September 30, 2022.
On France Telecom’s appeal, see also:
• France Telecom appeal trial: “They did not all die, but all were struck”, by Antoine Bloch, June 20, 2022
• France Telecom appeal trial: “It was not done casually”, by Antoine Bloch, June 28, 2022
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France Telecom appeal trial: “Perhaps there were people who were the subject of harassment”
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