Pas de protection fonctionnelle pour un agent déchargé pour activités syndicales ?!

FlickR - CGT - Yvan BrodierVoici une décision bien curieuse ((TA Rennes, 3ème chambre, 11 mars 2009, n°055568, AJFP 2010, p. 35.)) qui s’est prononcée en défaveur d’un fonctionnaire hospitalier qui réclamait le bénéfice des dispositions protectrices de l’article 11 de la loi du 13 juillet 1983, autrement dit la protection fonctionnelle. Curieuse est la décision non pas parce que je considère personnellement les syndicalistes comme de gentils Bisounours, mais parce que la présente espèce conduit à instaurer une dichotomie difficilement justifiable entre les salariés du secteur privé et les salariés du secteur public, lorsqu’ils sont investis d’un mandat syndical.

Qu’on en juge par les faits.

Un incident a opposé le syndicaliste (conducteur automobile hors catégorie et secrétaire général adjoint du syndicat CGT du CHU de Nantes) à l’attachée d’administration hospitalière, responsable du service de reprographie dudit centre hospitalier, à propos du retrait de l’original d’une affiche que le syndicat désirait faire reproduire. Propos injurieux et menaces se sont échangés. Qui a commencé les hostilités ? Les témoignages contradictoires issus du dossier ne permettent pas de répondre à cette question avec précision.

Toujours est-il que l’attachée, après avoir déposé plainte contre son collègue, a demandé et obtenu la protection fonctionnelle. Le conducteur syndicaliste a formulé la même demande mais il a essuyé un refus de la part du directeur général par intérim du CHU, au motif que les faits en cause ne sont pas intervenus dans le cadre de l’exercice de ses fonctions administratives ou d’évènements de sa vie privée à raison de son activité professionnelle mais dans celui de l’exercice de son mandat syndical.

Les dispositions de l’article 11 de la loi du 13 juillet 1983 limitent le champ d’intervention de l’administration aux cas de fonctionnaires victimes de menaces, violences, voies de fait et injures à l’occasion de leurs fonctions.

En droit privé, et plus précisément dans le code du travail, la notion de « salarié protégé » est extrêmement prégnante et son respect fait l’objet d’une attention particulière des juridictions judiciaires. Pourquoi n’en serait-il pas de même des juridictions administratives ?

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