An employee who is a carpenter is also a micro-entrepreneur in the same sector, outside of his working time. The employer dismissed him for gross misconduct on the grounds that it was a breach of his duty of loyalty. He appealed to the labor court to challenge the real and serious nature of his dismissal and to obtain financial reparations.

The Court of Appeal considers that the dismissal is not valid for several reasons:

• the employment contract did not contain a non-compete clause ;
• no act of competition has been carried out by the employee;
• no equipment belonging to his employer was used;
• the employee's turnover remains low, which qualifies his activity as residual;
• the employee is entitled to engage in a concurrent activity without the need to obtain prior authorization from his employer.

The Court of Cassation invalidates these arguments. It considers that the employee is subject to a duty of loyalty. It does not matter whether or not there is a non-compete clause: an employee cannot compete with his employer. The judge accepts the qualification of gross misconduct since the simple fact of creating and practicing as a micro-entrepreneur directly concurrent activity to that of his employer justifies the fact that the employee cannot be retained within the company.

The Court considers that it is not necessary to take into account the residual nature of the activity or the non-use of the employer's equipment. The dismissal is not without real and serious cause, so it is valid.