The day after his return from vacation, Sébastien Klem, 41, performed a PCR test, which turned out to be positive. His employer, the HLM M2A Habitat office in Mulhouse dismissed him for serious misconduct, accusing him of having put his colleagues in danger.
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On July 15, 2020, Sébastien Klem returns from leave and normally resumes his activity of claims manager at the HLM M2A office in Mulhouse. The next day, after an expertise carried out in the Coteaux district, he saw a COVID screening stand drive in the parking lot of a hypermarket. He stops and performs a PCR test then returns to his desk.
“Apart from a slight cough, I really had no symptoms,” explains Sébastien Klem, 41 years old. “It was an opportunity on my way, I only followed the government’s recommendations, the call for testing was so publicized, he says. I felt in great shape, the day before, I had even gone for a run“.
The same evening, he received the result: positive. Sébastien Klem then immediately warns his employer. He is put in fourteen, with his 4 year old daughter.
Despite the completion of this test on July 16, 2020 in the morning, and despite the risk you put other employees at risk, you resumed your professional activity in the afternoon and rubbed shoulders with your work colleagues when you had doubts. on your state of health by going for the Covid-19 test. Your behavior is totally irresponsible and constitutes a violation of your obligation to be safe.
Laid off then fired for serious misconduct
In mid-August, Sébastien Klem receives a registered letter inviting him to a preliminary dismissal interview for serious misconduct. His management criticizes him for not having applied the safety obligation; he shouldn’t have gone back to work after the test. “We don’t do a screening if we don’t have suspicion“Says the human resources department in the letter.
Sébastien Klem worked for the M2A Habitat office in Mulhouse
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© Eric Kleinhoffer / France Televisions
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The management of the office advances a version different from that of its former employee: “He was pale, had red eyes and a strong cough, we have colleagues who were worried“. Eric Peter, the general manager even adds:”he had a fever, he told his colleagues. They provided us with written certificates“.
In the dismissal letter, Sébastien Klem is told that he should have stayed at home, and why not work from home, pending the results of the test. The company also highlights the non-compliance with the health and safety protocols put in place within the office to deal with Covid-19 risks, which has resulted in a violation of the safety obligation. Indeed, a self-diagnostic questionnaire sent by email to employees as of May 11 asks them to stay at home at the slightest symptom. Symptoms detailed on this sheet below. But the cough does not appear there.
Memo Covid, M2A Habitat
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© M2A Habitat
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When the test was positive, there was a wave of panic in the office. The management had to shut down an entire floor, but that’s not what bothers them the most: “it is the fact that he has played with the lives of his colleagues, tenants and suppliers“, insists Eric Peter, its managing director.
“We don’t play with people’s lives”
“We don’t play with people’s lives“. Eric Peter explains that he had no choice but to fire.”given the seriousness of the facts, there is no other sanction possible“.
Sébastien Klem brought the case before the Prud’hommes and argues his good faith by explaining that if he had had a suspicion, he would never have had his daughter looked after by her parents, elderly and at risk people. In addition, he provided a medical certificate which noted only a slight cough and no other symptoms were mentioned. Even today, he finds it difficult to realize what is happening to him “I am going to take a test and I am punished, I find myself unemployed. If I hadn’t done a test, I would still have my job, but I might have killed people“.
Labor Code
There are in fact two elements of the labor code which contradict each other. On the one hand, respect for private life and medical confidentiality, and on the other, the obligation to protect colleagues, in the event of a contagious disease, according to the explanations of Maître Laurent Toussaint, lawyer specializing in labor law, “and on this, the labor code has no answer“. This is what justice will have to decide.
In the meantime, Sébastien Klem is at least relieved of one thing, he has not infected anyone, neither in his family, nor in his work.
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