The government had promised that the ordinances Work would simplify the life of all employers. This does not appear to be the case if we rely on the clashes that have punctuated the punishment of "stupidity" - in his own words - Alexander Benalla. Between the contradictions and approximations of the Elysée, even the more knowledgeable in the field of labour law be lost in the shuffle.
The case seemed simple enough at the beginning. In the aftermath of the revelations of the World, the spokesman of the Elysée Bruno Roger-Petit had ensured that the ex-chargé de mission, contract with the public service, "had been set on foot fifteen days, with suspension of salary." A disciplinary sanction should therefore have been taken against him.
But that's it. These remarks were, in part, denied during the intervention of the director of the law firm of Emmanuel Macron, Patrick Strzoda, before the commission of laws of the Senate. Contrary to what had been said so far, he has asserted that Alexandra Benalla had "touched for the month of may his full salary... On the other hand, the fifteen-day suspension will be subject to a hold on rights to leave he had remaining in respect of the year 2017". The polemic is launched.
"I've received a lot of messages from experts in labour law who are questioning very strongly on the fact that the withholding of the salary of Alexander Benalla is implemented on the leave not taken...", was moved the next day the vice-president of the Commission des lois of the Senate Jean-Pierre Sueur at the hearing of Alexis Kohler. There was always something. Lighting in three questions and answers.
is it possible to make a deduction on paid leave in place of a withholding tax on salary?
No, it is illegal, says Guillaume Glénard, lawyer and professor of law of the public service. Contrary to what was said Patrick Strzoda, the Elysée may not place a hold on the rights to paid leave in place of a restraint on wages in the context of a disciplinary sanction. "This would deprive Alexander Benalla of his rights to paid leave," continued the lawyer. There is ever so If it has been set on foot for fifteen days in early may, the withholding of treatment should have been done in the month of may during the period of suspension of the service or at the latest in June for reasons that are strictly accounting."
what To sow doubt on the first penalty to Alexander Benalla. When he was questioned by the commission des lois of the Senate on the lack of restraint in the month of may, the director of the law firm of Emmanuel Macron justified: "The decree 86 stipulates that the suspension it is with the continuation of the treatment". We no longer speak of layoff, but of suspension.
Alexander Benalla he was terminated or suspended?
The question may seem trivial, but it has its importance in terms of gradation of the penalty that one wants to impose. "We must distinguish what are the right of the public service, disciplinary action, and suspension, insists Guillaume Glénard. Both are indeed governed by the decree of 17 January 1986, and in both cases, the agent is removed from the service (it is forbidden to go to work), but they are not of the same order. The layoff is a disciplinary measure, to withhold treatment (as foreseen by article 43-2), when the suspension, less heavy, allows the agent to retain his compensation (article 43). This is a precautionary measure taken in anticipation of a disciplinary sanction." A size difference indicative of the importance given to the wrong committed.
In the notification letter sent on 3 may by Patrick Strzoda Alexander Benalla and whose transcripts were published by The World, it is question of suspension. "Your behavior has been detrimental to the exemplarity that is to be expected, in all circumstances, agents of the presidency of the Republic. As a result, I have decided to suspend you from your duties, effective may 4, 2018, for a period of fifteen days. You return to your duties on 19 may 2018," he wrote.
READ ALSO >> AT the Elysée, the elusive responsible for mission
the Third element that casts doubt on a possible layoff, "it is the fact that Alexander Bennalla should have been informed beforehand that they were going to initiate a disciplinary procedure against him," says Guillaume Glénard. An obligation arising out of article 44 of the decree of 1986. "It is only after mailing or delivery of a letter to that effect to the agent and a short little period of time so that he could eventually assert his arguments and his defence (five days, approximately) that one may impose a disciplinary sanction." The facts are not clearly held as well as events involving date from the 1st may and the letter of 3 may.
"If, however, the letter was supposed to inflict the disciplinary penalty, it would be illegal for defect in procedure," says the lawyer said that, on the other hand, a suspension may be applied immediately...
The procedure has completed successfully?
Asked about all these points before the commission des lois of the Senate, the secretary general of the Elysee, did not manage to lift the veil. "As regards the question of withholding on wages, effectively there is a matter of judgement taking account of the contractual status of the person, of the application of a decree of 1986, and of the possibility within the framework of a suspension to apply the suspension of salary. It has been preferred by competent persons withholding sur days of leave," defends jumble Alexis Kohler...
Read our complete fileBenalla denounces leaks of the ministry of Interior Smartphone: "Everything is hackable" distance Of text messages on the phone of Benalla remotely wiped?
layoff, suspension... "They play constantly on the two concepts", analysis Guillame Glénard. However, these sanctions are of an extreme simplicity, for anyone familiar with the law of the public service. This is apparently not the case at the Elysée.
Publish Date : 06 Kasım 2018 Salı 14:41
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