That is what, for the first time, the Court of Cassation has indicated in a decision of 6 February 2013, having admitted the re-transcription of a message left on the voice mail/answering machine of an employee as evidence that he had been dismissed verbally. (Cass. soc., 6 février 2013, n° 11-23.738 FP-PB).
For several years now, case law has considered that recording a private telephone conversation, without the speaker knowing, is an unfair process making evidence obtained in that way inadmissible at law (Cass. 2e civ., 7 octobre 2004, n° 03-12. 653).
However, the Court of Cassation had never had to decide about messages left on personal answering machines or voice mail.
In a plenary session, on 6 February 2013, the judges of the Social Division (Chambre Sociale) of the Court of Cassation decided that re-transcription of voice messages is not an unfair process and thus constitutes a means of evidence that is perfectly admissible.
The case concerned an employee who was dismissed for serious misconduct in a letter of 28 January 2010. A month before, on 24 December 2009, the employer had already dismissed him verbally. Case law has always considered that a verbal dismissal is without real and serious grounds whenever the letter notifying the termination has not been sent previously by the employer (Cass. soc., 6 mai 2009, n° 08-40.395).
In order to prove the verbal dismissal and in order to obtain the corresponding compensation, the employee produced a re-transcription made by a bailiff of messages referring to the verbal dismissal left by the employer on the employee’s personal voice mail/answering machine.
The employer claimed that the evidence was inadmissible on the basis of the case law on recording of private telephone conversations, by virtue of which that mode of evidence is inadmissible if the speaker of the words in question was not informed that they were being listened to/recorded (Cass. 2e civ., 7 octobre 2004, n° 03-12. 653; Cass. soc., 29 janvier 2008, n° 06-45. 814).
The judges of the Court of Cassation dismissed that reasoning merely on the grounds that the speaker of the voice messages “could not have been unaware that they were being recorded by the receiving set”. The employer could not therefore claim any clandestine and therefore unfair nature for the re-transcription of the messages left on the voice mail/answering machine of the employee.
The system is identical to the case law on the admissibility of text messages as evidence, because it has been decided that the sender of text messages cannot be unaware that they are being recorded on the receiving set, so that such messages can be produced at law by their recipients. (Cass. soc., 23 mai 2007, n° 06-43.209).