Summary
- Overtime trigger threshold
- Collective banking and notarial agreements: flat rates in days
- The qualities of an employee cannot justify a difference in treatment when hiring
- Dispute relating to severance pay
- Accumulation of earnings and unemployment benefits
- Compliance with the notice period cannot lead to the termination of the contract beyond the trial period.
1. Threshold for triggering overtime
Soc. November 13, 2014 (n°13-10.721) FS-P+B:
An extended collective labor convention or agreement or a company or establishment convention or agreement may provide that the working week may vary over all or part of the year provided that, over one year, this duration does not exceed a ceiling of 1607 hours.
The convention or agreement may set a lower ceiling. In this case, the collective timetable adopted from a 1997 agreement provided for 32.5 hours per week, ie a total of 1470 hours. On the other hand, the agreement did not provide for the methods of remuneration for the hours worked beyond this schedule.
According to the Court of Cassation,
"in the absence of setting by the collective agreement of a lower trigger threshold, only the hours worked beyond 1607 hours constitute overtime".
2. Collective banking and notarial agreements: flat rates in days
Soc. December 17, 2014 (n°13-22.890) FS-P+B :
The agreement on the adjustment and reduction of working time in the banking sector of May 29, 2001 stipulates that:
- the count of days and half-days worked is done on the basis of a self-declaration system;
- the organization of the work of the employees must be subject to regular monitoring by the hierarchy, which will monitor in particular any possible work overload. In this case, it will be necessary to carry out an analysis of the situation, to take, if necessary, all appropriate measures to respect, in particular, the minimum duration of daily rest provided for in Article L. 220-1 of the Code of work and not to exceed the number of days worked, within the limits provided for in the last paragraph of Article L. 212-15-3III of the said code;
- the workload assigned and the length of the resulting day's work must allow each employee to take the daily rest referred to above;
- the minimum duration of this rest period is legally set at 11 hours taken consecutively and, where applicable, according to the terms of article 63 of the bank's collective agreement.
According to the social chamber, the provisions of the agreement meet the requirements relating to the right to health and rest.
Soc. November 13, 2014 (n°13-14.206) FSP+B:
In this judgment, the Court of Cassation considers that the fixed rate in days as provided for by the collective notarial agreement is zero.
According to the Court, "the provisions of article 8. 4. 2 of the national collective agreement for notaries of 8 June 2001, which are limited to providing, in the first place, that the length of the day's activity must not exceed 10 hours unless exceptionally overloaded with work, secondly that each quarter, each employee concerned draws up a report of his working time which he communicates to the employer and on which he specifies, if necessary, his usual hours of entry and exit in order to be able to assess the usual length of his working days and to remedy any excesses, are not such as to guarantee that the length and workload remain reasonable and ensure a good distribution, in the time, of the work of the person concerned, and, therefore, to ensure the protection of the safety and health of the employee, from which the Court of Appeal should have deduced that the agreement for a fixed number of days was void. ".
3. The qualities of an employee cannot justify a difference in treatment when hiring
Soc. November 5, 2014 (n°12-20.069) FSP+B:
In this case, an employee alleges before the industrial tribunal the disrespect of the principle of "equal work, equal pay" by his employer and requests the payment of various sums. In support of his request, the employee invokes the fact that one of his colleagues occupying the same functions as him within the same department, while justifying less seniority, had a classification almost identical to his and received a remuneration 20% higher than that which he enjoyed.
The Court of Cassation considers that
“if the professional qualities or the difference in the quality of work can constitute objective reasons justifying a difference in treatment between two employees occupying the same job, such elements likely to justify higher salary increases or a faster progression in the grid index, for the more deserving employee, cannot justify a difference in treatment during hiring, at a time when the employer has not yet been able to assess the professional qualities".
In the following recital, the Court adds
“that the only difference in diplomas, does not make it possible to found a difference in remuneration between employees who perform the same functions, unless it is demonstrated by justifications, the reality and relevance of which it is up to the judge to control, that the possession of a specific diploma attests to particular knowledge useful to the exercise of the occupied position”.
4. Dispute relating to severance pay
Soc. December 10, 2014 (n°13-22.134) FS-P+B:
The employment contract of an employee of a sole proprietorship is taken over by a SARL. The seniority of the employee, which amounts to fifteen years, is expressly included. Subsequently, the employer and the employee sign a termination under the terms of which the seniority is fixed at 9 months. The employee seized the industrial tribunal. The employee was dismissed by the Court of Appeal for her claims for payment of contractual termination indemnity and damages.
The Court of Cassation overturned the judgment on the grounds that:
"the absence of a request for annulment of the conventional termination and therefore of invocation of means in support of such a request, does not prohibit an employee from demanding compliance by the employer with the provisions of Article L 1237-13 of the labor code relating to the minimum amount of compensation specific to such a termination”. In this ruling, the Court of Cassation admits that one of the parties to the breach contract then contests the terms of the contract without contesting its validity.
5. Accumulation of remuneration and unemployment benefits
Soc. November 19, 2014 (n°13-23.643) FSP+B+R:
In the present case, the Court of Appeal found that the employee had obtained an order from his employer to pay compensation in lieu of salary for the period between his null dismissal and his reinstatement and decided that the payment of allowances unemployment benefits paid by the insurance organization for this period is undue.
The Court of Cassation approves the decision of the Court of Appeal:
"but given that in his relations with the unemployment insurance body, the employee whose dismissal is void for having been pronounced without administrative authorization or despite a refusal of authorization, is not entitled to combine unemployment benefits with his remuneration or an indemnity equivalent thereto.
6. Compliance with the notice period cannot lead to the termination of the contract beyond the trial period.
Soc. November 5, 2014 (n°13-18.114) FSP+B:
The employment contract of an employee hired on January 17, 2011 provides for a renewable three-month trial period.
By letter of April 8, 2011, the employer informs the employee that his trial is inconclusive and that in order to comply with the fifteen-day notice period, the employment contract will be terminated as of the following April 22, i.e. six days after the end of the trial period. In this case, the Court of Cassation is asked whether the employment contract was terminated during the trial period. According to the Court of Cassation, the employment relationship continued beyond the end of the trial period. Consequently, the employee is entitled to the payment of damages for abusive and irregular dismissal.
