This instructor was dismissed for serious misconduct after playing gambling games with disabled residents for whom he was responsible, despite his criminal acquittal.
It all starts from a discovery. It is February 18, 2020 in a medical-social establishment in Isère which welcomes disabled adults in an adapted and protected working environment. That morning, the mother of a resident placed under guardianship discovers that her son regularly gives money to his educator.
She immediately went to the center and asked to see those in charge. When the targeted monitor understands what is happening, he enters the office shouting, hands a 4 euro Keno ticket to the resident and claims that he is playing for him. A few hours later, he received his protective leave. The resident victim filed a complaint with the police the next day. He states that the educator was “addicted to games” and that he regularly asked for money to bet.
5 euros here, 10 euros there, 12 euros in a sports bet… The list of small amounts goes on. On March 20, 2020, the employee was dismissed for serious misconduct. His dismissal letter accuses him of two facts: having regularly requested money and having regularly practiced sports betting with workers he accompanied, in violation of article 3.4 of the AFIPH internal regulations, which formally prohibits any financial transaction with disabled people or their families.
The case then takes an unexpected turn on the criminal level. On April 13, 2021, the Vienna Criminal Court convicted the employee of fraudulent abuse of the ignorance or weakness of a vulnerable person. But on March 30, 2022, the Grenoble Court of Appeal overturned this decision and acquitted the defendant, finding that doubt remained about the circumstances in which the money had been handed over, and the recognized facts did not constitute a “seriously prejudicial” act within the meaning of the penal code.
With this acquittal, the educator, who had in the meantime appealed to the Vienna industrial tribunal, hopes to have his dismissal overturned. In vain. On April 19, 2023, the industrial tribunal judged the dismissal for serious misconduct to be well-founded and dismissed all of its claims, i.e. more than 48,000 euros claimed in various compensation. He appeals.
The Grenoble Court of Appeal responds on February 11, 2025. The educator’s argument is swept aside. His criminal acquittal was pronounced because doubt remained about the circumstances of the transfer of funds and because the facts did not constitute a criminal offense, and not because the facts had not occurred. Xavier Berjot, labor law lawyer, clarifies this fundamental point: “The acquittal is only required by the industrial tribunal judge when it is based on the finding that the fact did not exist or that the employee is not the author. Pronounced for any other reason, it leaves the industrial tribunal judge free to make his own assessment.”
In other words, the two justices do not ask the same question. “The criminal judge verifies that the facts bring together the elements constituting an incrimination, which here presupposed a fraudulent intention and a seriously prejudicial act, specifies the lawyer. The industrial tribunal judge investigates whether the facts established made it impossible for the employee to remain in the company.” The same behavior may thus be insufficient to characterize an offense, and sufficient to terminate an employment contract.
The educator himself admits the main thing: he has played gambling games with residents’ funds on several occasions. That’s enough. Because these people were precisely placed under legal protection to be protected from this type of situation. And it was up to him, their monitor, to protect them.
Even a few euros engaged in gambling with vulnerable residents is enough to make it impossible for the employee to remain in the company. The employee tried to defend himself by explaining that the residents themselves had asked him to play. Argument rejected: a person under guardianship or curatorship cannot, legally, give valid consent for this type of act. The bet is lost, his position with it.
