The case involves dealing a dental office and his assistant

A new step has yet crossed the occupational safety and health. The employer, who was forced to dismiss an employee become unfit for work for having contracted an occupational disease, shall pay to the person additional compensation if it is an inexcusable fault on its part which is at the origin of this disease: this is the lesson that should be drawn from a judgment of the Court of cassation on May 17, 2006 (No. 04 - 47 455).

The case involves dealing a dental office and his assistant. The latter reached a hepatitis C that has been recognized by the social security as an occupational disease. Given the nature of his condition and his job, which was in contact with the patients that could contaminate, she is dismissed.

Several damages assessed

Decided to not keep the annuity paid by the primary Fund, or the simple compensation for dismissal, our Assistant attack on two fronts: first, it captures the social security tribunal to recognize that his illness is inexcusable negligence of his employer, then she attacks directly his employer before the Labor Council requesting compensation for wrongful dismissal.

The inexcusable fault is recognized: the dental surgeon, who took no precaution to ensure the safety of his assistant that he knew receive patients with hepatitis C virus is indeed flawed. Of the conviction by the Court of appeal of Versailles, April 6, 2004, the employee is before the same Court of appeal to reform the judgment submitted that has successful it in his claim for wrongful termination of the contract of employment. New victory, September 14, 2004: taking into account difficulties to find a job, and the psychological impact of this case, it gets 26,000 euros compensation.

The employer laffitie argument, yet, does not successful it in the Court of appeal in the Court of cassation. It is that he honestly believes.

His speech is simple: recognition of its inexcusable fault has the effect of drag the rights of the employee of a lump-sum compensation to full compensation for the harm. The annuity, fixed up, has been calculated on real wages without deduction. It is the social security fund which pays but it recovers the amount under the contribution of labour accident rate.

In addition, the Unexcused implies repair of personal moral damages (pain and suffering, aesthetic and leisure injuries, loss of opportunity to promotion...), remedy that the employee could ask the Court of the Affairs of social security (TASS). Once the amount of the compensation fixed by the TASS, consider that the employee has been "filled his rights", all losses have been taken into account. There is no need to go still apply for other compensation in another court.

No minimum amount

This argument fails to convince the Court of cassation confirming the conviction of the Court of appeal. A pronounced dismissal because the employee is unfit for any position in the company and that it is impossible to reclassify, can therefore be considered abusive if it is a fault committed by the employer in execution of the contract of employment that this inability intervened. And for the Court of cassation, the fact that the employee obtained compensation plus the title of the occupational disease due to serious negligence of the employer, does the not deprive of the right to compensation in repairing the loss of his employment which is the result of management failure. It is inexcusable fault which is the origin of the notice of inability to any position issued by the occupational physician and as a result of dismissal.

It should be noted that the damages and awarded are not awarded for dismissal without real and serious cause but that it, in the words of the Court, of a "compensation repairing the loss of his job due to the fault of the employer".

The judge submitted is therefore free to assess the amount of the loss without being required by any amount, neither minimum nor maximum.