1) Facts: John Galliano could have made racist and anti-Semitic remarks
Arrested on February 24th, 2011, in the evening, following an altercation at the “La Perle” cafe, a trendy bar in the Marais (Paris III), John Galliano, drunk, would have hurled to a Jewish woman “Dirty Jewish face, you should be dead” and her boyfriend “Asian fucking bastard, I will kill you”.
The British designer was hired in 1996 by Bernard Arnault, chairman of LVMH, to “give back to Dior punch and visibility.”
Since 1999, he led all women's lines, leather goods, perfumes and the overall image of the brand, communication included.
Dior's reputation owes much to The “bankable” designer: the House has over 160 shops in the world (against 16 to his arrival), and its turnover amounted to 410 million Euros.
Provocative and unpredictable, John Galliano makes Dior's shows unavoidable and electric.
Today, his behavior, already condemned by the House, could ultimately cost him his career.
Indeed, few hours after the revelation of this affair, which occurred few days before the opening of Fashion Week, Dior's CEO, Sidney Toledano, announced: "Dior maintains, with the greatest firmness, its zero tolerance policy against any racist or anti-Semitic remarks or attitude [...] which are in total contradiction with the core values that have always been defended. Pending the results of the investigation, Dior's designer, John Galliano, is suspended from his duties. "
In the process, Dior's designer is covered by a new complaint for similar offenses that allegedly occurred in October 2010.
Finally, a video of December 12th, 2010, posted on Monday 28th February, 2011, on the Sun's website, finally discredit the designer, in which, visibly drunk, he insulted people sitting next to him and launch them “I love Hitler. [...] People like you are dead. Your mothers, your fathers are all fucking gassed.” According to the Sun, the scene was also held at "La Perle".
On 1st of March 2011, the news has come as bolt from the blue, Dior announced its decision to dismiss the designer: “Today, because of the particularly odious behavior and comments made by John Galliano in a video released Monday, Dior has decided his suspension and has initiated a dismissal procedure against him.”
Although the designer has apologized of his conduct, on Wednesday 2nd March, 2011 afternoon, via a press release, his career seems threatened.
2) The dismissal procedure
a) Suspension of 28th, February, 2011
In this case, there is a suspension pending confirmation of dismissal; it is justified by a serious fault, necessarily immediate effect and for an indefinite period (Article L. 1332-3 of the Labour Code).
The suspension is adopted by Dior as part of a disciplinary procedure, probably a dismissal for serious misconduct. It allows removing the designer from the company pending the sanction.
John Galliano's employment contract is suspended during the procedure; Dior would not have to pay him.
b) Preliminary discussion before dismissal: not until March 8th, 2011
John Galliano has probably been called to the preliminary discussion before his dismissal the day of LVMH President's release, Monday, February 28th, 2011.
Article L. 1232-2 of the French Labour Code provides that the period between the notice of the preliminary discussion and the preliminary discussion is five working days.
In the case, under sections 641 and 642 of the Civil Procedure Code, if the date of first presentation of the preliminary discussion's notice takes place Monday, February 28th, the period runs from Tuesday 1st March, it normally expires Saturday, March 5th, is extended until Monday, March 7th, so that the preliminary discussion may take place before Tuesday, March 8th.
3) Ground for dismissal: “characterized disorder to the company” ("trouble caractérisé à l'entreprise") ?
a) Facts relating to privacy
The charges against John Galliano and invoked as grounds for dismissal were held outside its time and place of work.
Thus, the question arises whether it is possible to dismiss an employee for acts relating to his privacy.
In principle, everyone is entitled to respect for his privacy, and the employer cannot interfere in the personal life of his employee.
It follows that, without exception, "the acts committed by an employee that does not correlate with his employment cannot be faulted" (Cass. Court. March 5th, 2000, No. 98-44022).
According to this principle, John Galliano could not therefore be dismissed for acts that occurred outside of his employment contract.
There is one exception, the "characterized disorder to the company", as Dior will probably raise against his Artistic Director.
b) The exception of “characterized disorder to the company”?
"If, in principle, an employee cannot be dismissed for a fact from his private life, it is different when his behavior has created a disorder in the Company" (Cass. soc. September 14, 2010 No. 09-65675).
This assumes that the allegations are based on objective and serious facts, attributable to the employee.
But more often, this objective disorder is, in practice, characterized regarding to the purpose of the company and the employee's duties.
In this case, John Galliano manages, since 1999, Dior's overall image and communication, he must behave as a brand's ambassador, embodying its principles and values, at any time.
In such regard, John Galliano's “odious” remarks create, according to us, obviously "a characterized disorder to the company."
Moreover, the fact that this case has become a global made brief, and a famous actress, face of the brand, says publicly its strong disagreement with the creator, are probably sufficient reasons to justify John Galliano's dismissal, because its tarnish Company's image. Similarly, Dior, which has an international and, therefore, multiracial clientele, could invoke a risk of lower sales to explain this decision.
However, the Court of Cassation (Cass. Court. September 14, 2010 No. 09-65675) poses a limit to this interference in the exercise of employees' liberties by refusing to assent such a disorder on the ground of disciplinary dismissal. Accordingly, Dior will only dismiss John Galliano within a non-disciplinary procedure, legitimized by an objective situation causing a disorder to the Company.
On March 2, 2011, the results of the police investigation on the remarks made by the star designer are unknown, and he benefits from the presumption of innocence (art. 11 of the UDHR).
At the end of the day, in the age of new technologies, an employee, as famous as he is, must be irreproachable, both during the execution of his employment contract as in his privacy.
Frédéric CHHUM
Lawyer
Camille COLOMBO
Labor Law Jurist
Phone : 01 42 89 24 48
Hotline : 01 42 56 03 00
e-mail : chhum@chhum-avocats.com
Website : www.chhum-avocats.com
Blog : http://avocats.fr/space/avocat-chhum
his employment contract as in his privacy.
Rédigé par : oakley frogskins | 03 août 2011 à 02:57