Newsletter n° 25 – Employment law – September 2015
SUMMARY
Legislative and regulatory news
- Employer representativeness
Decree no. 2015-654 of June 10, 2015 - Employers' social declarations
Ordinance of June 18, 2015 - Employer tax declarations
Decree No. 2015-600 of June 2, 2015 - Work of persons with disabilities
Decree No. 2015-655 of June 10, 2015
JURISPRUDENCE
Contract and execution of the employment contract
- Auto entrepreneur
- Requalification in employment contract
- Interim contracts
- Requalification into a permanent contract
- Work time
- Duration in the event of requalification of the part-time contract
- Modification of schedules
- The loss of basket bonus following a change in working hours is not a contractual modification
- Conventional contract transfer
- Obligations of the new employer
Termination of the employment contract
- Disciplinary action Definition
- Reason for dismissal
- Denunciation of acts of harassment
- Freedom of expression: only abuse justifies dismissal
- Refusal of the employee returning from paid leave to take up a similar position
- Economic dismissal
- Role of the labor inspector
- Order of dismissals
- Date of taking into account the workforce
- Compensation
- Protected employee
- Employee compensation
- Validity of the accumulation of compensation
- Procedure
- Principle of the uniqueness of the instance
- Payment of conventional leave: burden of proof
Collective relations
- CHSCT
- Scope of the mandate to sue
- Adjustment period
- Conditions for implementing an adaptation period
- Journalists
- Calculation of severance pay
Legislative and regulatory news
Employer representativeness
Law No. 2014-288 of March 5, 2014 on vocational training, employment and social democracy created new provisions relating to employer representativeness. This is established according to a symmetry with union representativeness based on the following criteria:
- respect for republican values;
- independence;
- financial transparency;
- a minimum seniority of two years in the professional and geographical field covering the level of negotiation. This seniority is assessed from the date of legal filing of the statutes; influence, primarily characterized by activity and experience;
- the audience, which is measured according to the number of member companies.
The decree of June 10, 20151 clarifies these legislative provisions by detailing the conditions and procedures for measuring the audience of employers' organizations at the level of the professional branch, at the national and inter-professional level as well as the elements necessary for organizations applying for the measurement of audience.
Social declarations from employers
The law relating to the simplification of business life2 notably empowered the government to take measures to simplify certain declarations.
The order of June 18, 2015, is taken on the basis of this clearance. It includes provisions relating to the company employment service voucher which it extended, from 1 July 2015, to companies with less than 20 employees instead of 10. At the same time, the associative employment voucher limited to companies with less than 10 employees is now extended to associations with less than 20 employees.
Employer tax returns
The provisions relating to the declaration that employers had to send to the administrative authority in order to deduct from their contribution in favor of vocational training, the direct financing that they had mobilized were repealed by the decree of June 2, 20153. This
decree was taken for the application of the provisions of the law of March 5, 2014 relating to professional training which removed this possibility of deducting direct financing.
Work of disabled people
The decree of June 10, 2015 4 entered into force on the following June 14, adding a paragraph to article R.5212-1 of the Labor Code. From now on, in companies with multiple establishments, the declaration relating to the obligation to employ disabled employees is drawn up by each establishment whose head has management power including the recruitment and dismissal of staff.
Case law
Requalification of the autoentrepreneur contract into an employment contract
Soc. May 6, 2015 (n° 13-27.535) FD:
In this case, a self-employed entrepreneur exercising a commercial activity in the service of a company had seized the industrial tribunal for the purpose of reclassifying his relationship with the company as an employee relationship.
The Court of Appeal rejected his request and sent him back to the Commercial Court. The court had, in fact, held that, on the one hand, the documents he produced did not establish the existence of a relationship of subordination and that, on the other hand, the person concerned had refused to attend a fair, that such a refusal and the service invoices sent to the company established that he was in no way bound by an employment contract.
1 Decree no. 2015-654 of June 10, 2015 relating to the implementation of the reform of employer representation
2 Law No. 2014-1545 of December 20, 2014 on the simplification of business life and containing various simplification and clarification provisions and administrative procedures
3 Decree no. 2015-600 of June 2, 2015 abolishing the regulatory provisions relating to the tax declaration of employers in the area of vocational training 4 Decree no. 2015-655 of June 10, 2015 relating to establishments subject to the employment obligation disabled workers pursuant to Articles L. 5212-2 and L. 5212-3 of the Labor Code
The Court of Cassation noted that the person concerned had worked in compliance with a precise daily schedule drawn up by the company, that he was required to attend individual interviews and business meetings, that the company had assigned him annual turnover targets and that it was imposed on it, in harsh and critical terms, to pass the sales according to a determined procedure under penalty of being refused. Consequently, the Court of Cassation considers that the Court of Appeal did not draw the conclusions from its own findings and violated Article L.1221-1 of the Labor Code.
Requalification of the interim contract
Soc. June 3, 2015 (n°14-17.705) FS-PB:
Between June 17, 2002 and December 20, 2009, the plaintiff had carried out 200 temporary assignments within the same company and had then seized the industrial tribunal with a request for reclassification of her temporary employment contracts as a contract for indefinite period.
The Court of Appeal dismissed the employee.
According to the court: – the total interruption of assignments for 27 months, – the large number of contracts (114) after this interruption and the fact that they were regular were not sufficient to establish that their purpose was to fill permanently a job linked to the normal and permanent activity of the company, the company wishing to favor the temporary hiring of a person who knew his work well and with whom he was satisfied, rather than the hiring of a temporary employee unknown person she was going to have to train, – all the temporary assignment contracts mentioned the reason either for a temporary increase in activity, with the order references, or for replacing an absent employee, with the name of the employee and the reason for his absence. Contracts for temporary increase in activity being interspersed with contracts for replacing absent employees, the increase in activity was quite specific and not permanent. The Court of Cassation held on the contrary that, whatever the reason for resorting to temporary work, the employee had held the same job. Consequently, she considers that these temporary contracts had been used to meet a structural need for labor and that the job she held was permanently linked to the normal and permanent activity of the company. 'company.
Working time in the event of reclassification of the part-time contract
Soc. June 3, 2015 (n°13-21.671) FS-PB:
In this case, an employee seized the industrial tribunal of a request for requalification of his part-time contract into a full-time contract.
The Court of Appeal granted this request and fixed the duration of the contract at 169 hours. This duration set by the Court of Appeal was the subject of a censure by the Court of Cassation which specifies that in the event of requalification of the part-time employment contract into a full-time employment contract, the duration of work resulting corresponds to the legal duration or, if it is less, to the duration fixed by agreement.
Loss of basket bonus following a change of schedule
Soc. April 9, 2015 (n°13-27.624) FS-PB:
An employee dismissed following his refusal to comply with a change in work schedules notified by his employer challenged the termination of the contract before the industrial tribunal.
In support of his claim, the employee claimed that the change in working hours modified his employment contract and in particular the contractual remuneration, without his consent. The Court of Appeal dismissed his request.
According to the court, the change in the hours of the work cycle led to a reduction in the basket bonus linked to the night hours, i.e. the reduction of a non-contractual bonus. The Court of Cassation upheld this decision by dismissing the appeal on the grounds that the reduction in remuneration resulting from the reduction in subjection following a change in the hours of the work cycle does not constitute a modification of the employment contract.
Conventional transfer of employment contract
Soc. May 27, 2015 (No. 14-11.155) FS-PBR:
In this case, an employee had been employed under two one-month contracts before being employed under a permanent contract.
According to the collective agreement for cleaning companies and associated services, the employee's employment contract had been transferred following the loss of the contract by her employer. Declared unfit, the employee had been dismissed for incapacity and had seized the industrial tribunal to obtain the requalification of her fixed-term contracts into a permanent contract. The Court of Appeal had condemned the incoming company to pay requalification compensation.
According to the court, the new employer was bound by the obligations incumbent on the former employer and was therefore bound to pay the requalification indemnity. The Court of Cassation holds that the continuation of the employment contract resulted from the sole application of the contractual provisions which do not provide that the new service provider is bound by the obligations incumbent on the former at the time of the transfer. Consequently, the Court overturns the appeal decision.
Disciplinary measure: definition
Soc. May 19, 2015 (n°13-26.916) FS-PB:
According to this judgment, the Court of Cassation underlines that "any measure, other than verbal observations, taken by the employer following an action by the employee considered by the employer to be at fault, whether this measure is of a to affect immediately or not the presence of the employee in the company, his function, his career or his remuneration" constitutes a disciplinary sanction.
Thus, constitutes such a sanction, the request for written explanations, kept in the employee's individual file with the latter's response, implemented following facts considered as faulty to which the employee had to respond alone and immediately, the refusal constituting an additional grievance which could in itself justify a sanction.
Denunciation of acts of harassment
Soc. June 3, 2015 (n°14-12.245) FS-PB:
In this case, an employer had seized the industrial tribunal of a request for termination of an apprenticeship contract at the expense of his apprentice.
The Court of Appeal had granted this request insofar as the apprentice had made very serious and totally unfounded accusations of moral or even sexual harassment against her employer in a letter, citing in particular trivial facts occurring outside the place and time of work.
The Court of Cassation, first recalls, that except in bad faith, the denunciation of moral or sexual harassment cannot be sanctioned. This reason cannot therefore be taken into consideration in the assessment of any faults of the apprentice likely to justify the judicial termination of the contract at her fault. The Court of Appeal not having characterized the bad faith of the apprentice, which could only result from knowledge of the falsity of the facts denounced, the judgment of appeal is quashed.
Soc. June 10, 2015 (n°13-25.554) FS-PB:
In the present case, an employer criticized the appeal judgment for having pronounced the dismissal null and void and for having ordered him to pay severance pay on the ground that he had, in the letter of dismissal, accused his employee of having accused his employer of harassment and that this employer had not established that this denunciation had been made in bad faith.
The Court of Cassation again recalled that an employee who recounts acts of moral harassment cannot be dismissed for this reason except in bad faith, which can only result from knowledge by the employee of the falsity of the facts that he denounces. Consequently, the Court of Cassation confirms the appeal decision. Only abuse in the exercise of freedom of expression justifies dismissal
Soc. May 6, 2015 (No. 14-10.781) FD:
An employer accusing his employee of remarks made in two articles published on a website had dismissed him for serious misconduct.
The employee then challenged the breach of contract before the industrial tribunal. The Court of Appeal considered that the dismissal was based neither on serious misconduct nor on a real and serious cause insofar as the fact for an employee to question himself, in the context of a situation of conflict and by the way of a website of an almost confidential nature, on the dismissal of one of his colleagues, without the offending remarks being insulting or vexatious, did not exceed the limits of freedom of expression.
The Court of Cassation confirms the judgment and specifies that the freedom of expression of employees outside the company can only justify a dismissal if it degenerates into abuse.
Refusal of the employee returning from sabbatical leave to take up a similar position
Soc. June 3, 2015 (n°14-12.245) FS-PB:
On her return from sabbatical leave, the employee's position having been definitively filled, she was offered several positions which she refused before being dismissed.
The employee then seized the labor court to have her dismissal considered without real and serious cause. The Court of Appeal rejected her request insofar as the employee's previous job was no longer available and she had refused several offers of positions with characteristics equivalent to those of the position she held before the leave.
The Court of Cassation recalls that at the end of the sabbatical leave, the employee must return to his previous job or, failing that, a similar job and rejects the appeal.
Economic dismissal:
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Role of the labor inspector
CE May 22, 2015 (n°371061):
In this case, a request for authorization to dismiss a protected employee based on the cessation of activity of the company in compulsory liquidation had been submitted to the labor inspector.
The inspector had noted that the judgment of the commercial court ordered the liquidation of the company with cessation of activity and had deduced from this that the economic reason for the dismissal had been established. The Council of State notes that in the event that the commercial court has not authorized the continuation of the activity under the conditions provided for in article L. 641-10 of the commercial code, the judgment opening the liquidation judicial action has the effect of the total and definitive cessation of the company's activity. However, it is up to the labor inspector to take into account, on the date on which he makes his decision, all the elements of law or fact gathered during his investigation which would be of such a nature as to obstruct the envisaged dismissal. If, in particular, the transfer of the company's rights and assets is accompanied by a resumption, even partial, of the activity, under conditions implying a transfer of the employee's employment contract to a new employer in application of Article L. 1224-1 of the Labor Code, such a circumstance precludes the requested dismissal.
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Effects of administrative authorization
Soc. May 27, 2015 (n°13-26.985) FS-PB:
In this case, a company subject to judicial liquidation proceedings had proceeded to the economic dismissal of several protected employees.
The latter challenged their dismissal, citing the lack of referral to the joint national or territorial employment commission provided for in particular by the ANI of February 10, 1969 and December 31, 1986. The Court of Appeal rejected the claims for damages. interest for dismissal without real and serious cause on the grounds that the ANI of February 10, 1969 was not extended. Referred to by these same employees, the Court of Cassation dismissed the appeal against the appeal judgment on the grounds that when an administrative authorization had been granted, the principle of the separation of powers precludes the judicial judge from pronounces on the respect by the employer of the obligations that contractual provisions place upon him prior to the dismissal, to favor the reclassification.
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Order of dismissals
Soc. May 27, 2015 (n°14-11.688) FS-PB:
The Court of Cassation rejected the appeal of a company that had carried out economic redundancies and challenged the appeal judgment condemning it to pay a former employee compensation for non-compliance with the criteria for the order of redundancies.
Indeed, this employer had classified into two distinct professional categories, employees carrying out similar functions on machines of different generations without however justifying that the use of one or the other of these machines required specific basic training. or additional training beyond the accommodation obligation. The implementation of the criteria for the order of dismissals in each of the categories was then considered irregular by the Court of Appeal.
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Date of taking into account the workforce
Soc. June 10, 2015 (n°14-10.031) FS-PB:
The liquidator of a company proceeded to the dismissal of the employees after the voluntary implementation of a job protection plan.
Considering that the employment safeguard plan was insufficient, the employees seized the industrial tribunal. As the company had fewer than 50 employees on the day the dismissal procedure was initiated, the Court of Appeal and then the Court of Cassation considered that the voluntary safeguard plan did not have to meet the requirements of Articles L. 1233-61 and L.1233-62 of the Labor Code.
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Compensation for an employee retired irregularly
Soc. May 19, 2015 (n°13-27.763) FS-PB:
In this case, as part of a collective redundancy plan following a job protection plan, a protected employee had been summoned to a preliminary interview and then had been exempted from activity.
The administrative authorization for dismissal having been refused, the employee had been retired. He then seized the labor court to have his dismissal reclassified as economic dismissal without real and serious cause. The Court of Appeal rejected his claims, but the Court of Cassation quashed the appeal judgment insofar as the employer had waited for the end of the employee's protection period to, under the guise of a retirement not meeting the legal conditions, proceed with the termination of the employment contract, which was part of the collective redundancy project following the decision to close the site, which resulted in being necessarily deferred to the regard to this employee the implementation of the commitments made in the job protection plan.
Compensation of employees in the event of succession of employers: validity of the accumulation
Soc. June 10, 2015 (n°13-27.144) FS-PB:
In this case, the employees of a company that sold its research and development activity had formalized a break with it before being hired by the transferee.
The latter had finally dismissed all the employees for economic reasons and had concluded transactions with each of them. Believing that the company had reduced the workforce by at least ten employees over a period of thirty days outside of any job protection plan and without respecting the procedure provided for this purpose, employees seized the industrial tribunal of requests for annulment of the breaches of their employment contract or, in the alternative, for their reclassification as dismissal without real and serious cause and for payment of various sums. The assignee, sentenced by the Court of Appeal to pay various sums, challenges this decision before the Court of Cassation.
In support of its claim, the assignee invokes a violation of the principle of full and adequate compensation for the damage resulting from the taking into account of the totality of the seniority of the employees when calculating the compensation of the employees for the termination of the employment contract. The Court of Cassation upheld the appeal judgment insofar as, since article L.1224-1 of the Labor Code is not applicable and each of the employers having signed separate employment contracts with the employees, the employees could claim compensation for the damage resulting from the termination of different employment contracts, regardless of whether seniority was taken over by the second employer.
Principle of the uniqueness of the instance
Soc. June 10, 2015 (n°13-26.638) FS-PB:
Invoking a breach of the principle of "equal work, equal pay", an employee placed on early retirement had seized the industrial tribunal in order to obtain payment of back pay and additional severance pay at the retirement.
The Court of Appeal granted the request of the employee, who then again seized the industrial tribunal to obtain an order against his employer to pay the contributions to be paid to Agirc, to adjust the contributions to the supplementary pension scheme based on salary reminders and the payment of a reminder of pre-retirement pensions and damages. According to the Court of Appeal, these requests were analyzed as the consequences of the methods of execution by the employer of the sentence pronounced against him and granted them.
The Court of Cassation recalls that a proceeding can only be instituted after a first industrial tribunal procedure when the basis of the new claims has arisen or has been revealed after the extinction of the original instance. Consequently, the Court reverses the judgment insofar as it considers that the employee could present all these requests from the initial instance, which resulted in the basis of these requests for payment of contributions having arisen before the closing of the proceedings. before the Court of Appeal hearing the original instance.
Payment for conventional leave not taken
Soc. May 12, 2015 (n°13-20.349) FS-PB:
In this case, an employee objected to the appeal judgment for dismissing his request for recall of quarterly leave.
According to the employee, in the event of a dispute relating to leave, it is up to the employer to justify that he has effectively taken the appropriate measures to ensure the employee the possibility of effectively exercising his right to leave. The Court of Cassation noted that conventional leave is provided in addition to paid annual leave of a minimum duration of four weeks and dismissed the appeal. It is therefore up to the employee who intends to obtain payment for conventional leave not taken to provide proof that he was unable to take it because of the employer.
Scope of the mandate to take legal action granted to the CHSCT
Soc. May 19, 2015 (n°13-24.887) FS-PB:
In this case, the CHSCT of an establishment had decided to use an expert measure in order to carry out a study on the exposure of employees to certain risks.
The company then seized the High Court of a request for cancellation of this deliberation. The Court of Appeal granted this request, which was then challenged by the CHSCT before the Court of Cassation.
The question of the admissibility of the appeal was raised by the defendant. In particular, he claimed that the power given by the CHSCT to “carry out any action of representation” was drafted in too general terms and did not make it possible to know the extent of the representation sought. To this question the Court of Cassation replied that "the mandate given by the CHSCT to one of its members to take legal action on the occasion of a specific case empowers the latter to bring appeals against the decision rendered on this action”. Consequently, by the deliberation adopted within the framework of the expert procedure, the CHSCT has given a mandate to its representatives to take any legal measures relating to its execution, which includes the appeal in cassation.
Adaptation period to a new position
Soc. May 20, 2015 (n°13-13.967) FS-PB:
In this case, 3 months after the reassessment of the position of one of his employees, an employer indicated to him a 6-month adaptation period, which he then wished to extend.
The employee refused this extension, then refused two job offers with a lower classification. The employee finally took note of the breach of her employment contract and seized the labor court. The Court of Appeal considered that the break produced the effects of a resignation insofar as the employee did not demonstrate that the accommodation measure had been imposed unilaterally by the employer or that it was illegal.
Pursuant to the provision of the applicable collective agreement, the Court of Cassation overturns the appeal decision. The Court notes that under the very terms of the provision establishing a period of adaptation in the event of a change of class or function, this allows the company and the employee to have sufficient perspective. According to the Court, this presupposes a change of position and class, but in this case the employer notified the employee of the probationary period at a time clearly after the change of class.
Methods of calculating the amount of the severance indemnity
Soc. June 3, 2015 (n°13-26.799) FS-PBR:
In this case, a journalist concluded a severance agreement with his employer then seized the industrial tribunal with a request to say that the severance produced the effects of a dismissal without real and serious cause.
The Court of Appeal accepted the employee's requests and held to this end that the severance pay provided for by article L. 7112-3 of the Labor Code constitutes severance pay within the meaning of article L. 1234 -9 of the Labor Code to which the termination agreement could not derogate to provide for compensation of an amount lower than that to which he was entitled under the terms of Article L. 7112-3.
The Court of Cassation, on the contrary, considers that article L.1237-13 of the Labor Code refers only to the provisions of article L.1234-9 so that the calculation of the minimum compensation is that provided for by Articles R.1234-1 and R.1234-2 of the Labor Code.
