The incident provoked the indignation of the railwaymen. This Wednesday, October 16, in the Ardennes, a TER with 70 passengers aboard, hit an exceptional convoy. The driver, slightly injured, was not accompanied by a controller on the train. He had to get off the train to secure the lane to avoid another collision. In response, drivers and controllers have announced Friday, October 18 to play their right of withdrawal everywhere in France on the TER network and some lines in the Paris region, thus causing numerous disturbances. In concrete terms, what does the law provide in this case?
What is the right of withdrawal?
In the case of a strike, the filing of a notice five days in advance is mandatory in the public services. In this case, the unions have not filed any notice and claim a “right of withdrawal”. according to Article L4131-1 of the Labor Code, an employee may assert his right of withdrawal if a situation “presents a serious and imminent danger to his life or health”. It does not concern the endangerment of others, but only the employee in question. It is an individual right, but that can be taken collectively, as since this morning to the SNCF.
To assert his right, the employee must alert “his employer immediately”. Teachers had claimed the same right of withdrawal Monday, September 30, after the fire Lubrizol factory in Rouen. They felt that the air pollution caused by the factory fire put their health at risk. The right of withdrawal is therefore determined on a case by case basis, depending on the situation and the dangers feared by employees.
The employer can not oppose the right of withdrawal. If it does not respect this right, it can have serious consequences: in the event of an industrial accident, the prosecution can go as far as the charge of manslaughter. Nor can the employer penalize an employee who asserts his right of withdrawal if the danger is proven. However, he must “remain at the disposal of his employer”. In concrete terms, this means that the employee is not supposed to stay at home.
Can we speak of “illegal strike”?
For the managing director of SNCF-TER, Franck Lacroix, stopping the work of the railway workers this Friday would in fact constitute “strike without notice” which is “unacceptable”. Moreover, the SNCF took again its elements of language on Twitter:
Following a strike without notice, the traffic is disturbed this morning in several regions since the beginning of service.
We advise travelers on daily trains to postpone their trips as far as possible. (1/2)
– SNCF (@SNCF) October 18, 2019
“A right of withdrawal, it is because of something serious.It is not a social movement, retorted for its part Philippe Martinez, Secretary General of CGT, this Friday morning on Europe 1. We avoided a tragedy because there is a conscientious driver, attached to the rail public service, who worked. But we can not continue like this, “he warned.
According to Alexandre Ebtedaei, a labor law lawyer at FTPA: “We can think that here we have to go on a solidarity strike, it is difficult to consider that there is an imminent danger for the railway workers.” The imminence of the danger is indeed one of the foundations of the right of withdrawal. Without this notion, it is difficult to legally justify the use of the right of withdrawal.
What potential lawsuits?
“The right of withdrawal is not to be taken lightly,” continues the lawyer. An employer may challenge the right of withdrawal of an employee retrospectively if he considers that the conditions have not been met. If finally the movement is recognized as an illegal strike, “Employees risk a layoff or even a dismissal for gross misconduct (…) This would be considered a job abandonment.
Unions can also be punished. If a court determines that they have called a strike without notice, then they risk damages to the employer. It is unlikely, however, that SNCF management will undertake such actions.
“The SNCF's policy is rarely to aggravate the situation, and even from an individual point of view, I imagine more warnings than dismissals for the railwaymen concerned,” concludes Alexandre Ebtedaei.