Quand le juge se prend pour l’employeur

FlickR - Pédiatrie 377 - InferisC’est l’histoire d’un établissement PSPH, la Fondation Hôpital Saint Joseph, qui a entendu réorganiser ses services afin de développer les activités de cancérologie et de gériatrie, rendue nécessaire tant par la taille critique du service concerné que par la sauvegarde de la compétitivité en raison des contraintes budgétaires de l’hôpital. Cette réorganisation a supposé que soit supprimé le service de pédiatrie, motif économique à l’origine du licenciement d’un salarié, chirurgien adjoint responsable du département d’urologie infantile.

Pour juger ce licenciement sans cause réelle et sérieuse, les juges d’appel ont retenu qu’il importait de vérifier la pertinence des mesures prises au regard des objectifs économiques poursuivis, et qu’il n’était pas justifié de l’impact de la fermeture du service de pédiatrie pour remédier au déficit globalement enregistré, d’autant qu’elle a été suivie par le redéploiement des activités dans les secteurs gériatrie, cancérologie et unité de soins intensifs en cardiologie (USIC), tous largement plus onéreux, et par la création d’un pôle mère enfant dans le prolongement de laquelle s’inscrivait logiquement le maintien de la chirurgie infantile.

Voilà une motivation proprement surprenante aux termes de laquelle le juge se livre ni plus ni moins à un audit de la stratégie pensée et mise en oeuvre par la direction de l’établissement. Ce faisant, il se substitue aux choix opérés par l’employeur.

Revenons-en au texte applicable, soit l’article L.1233-3 du code du travail qui définit ce qu’on doit entendre par motif économique :

« Constitue un licenciement pour motif économique le licenciement effectué par un employeur pour un ou plusieurs motifs non inhérents à la personne du salarié résultant d’une suppression ou transformation d’emploi ou d’une modification, refusée par le salarié, d’un élément essentiel du contrat de travail, consécutives notamment à des difficultés économiques ou à des mutations technologiques ».

Ce texte recommande-t-il d’aller si loin dans l’analyse du motif économique ? A examiner la jurisprudence de la Cour de cassation, assurément non.

Par arrêt du 8 juillet 2009 ((Cass. Soc., 8 juillet 2009, Fondation Hôpital Saint Joseph c/ Lottmann, n°08-40.046.)), les magistrats de la Cour de cassation, s’ils admettent qu’il incombe au juge de contrôler le caractère sérieux du motif économique du licenciement, de vérifier l’adéquation entre la situation économique de l’entreprise et les mesures affectant l’emploi ou le contrat de travail envisagées par l’employeur, reconnaissent toutefois que le juge ne peut se substituer à ce dernier s’agissant des choix qu’il effectue dans la mise en oeuvre de la réorganisation. La cassation est prononcée au visa de l’article L.1233-3 du code du travail.

En jugeant, de surcroît, que le licenciement pour motif économique est sans cause réelle et sérieuse au motif que l’employeur ne justifie pas de la réalité ni de la consistance de ses efforts au titre de son obligation de reclassement, alors qu’elle avait constaté que le seul poste susceptible de convenir au salarié ne pouvait lui être proposé, la cour d’appel, qui n’a pas tiré les conséquences légales de ses constatations, a violé l’article L.1233-4 du code du travail.

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