In a decision of March 10th, 2021 (n ° 18/01082), the Paris Court of Appeal reclassifies the employment relationship between an employee, head of general services, employee on a fixed-term contract for 10 years with an indefinite employment contract by stating in particular that "the National Defense Code on which Mr. Y relies does not contain any provision derogating for the EDA from the obligation to respect the waiting period, so that the adage" the special law derogates from the general law "does not apply".
3) On the request to reclassify fixed-term contracts (CDD) into indefinite-term contracts (CDI).
The National Defense Code does not contain any provision derogating from the obligation to respect the waiting period: no application of the rule specialia generalibus derogant
In the judgment of March 10, 2021, the Paris Court of Appeal noted that all of Mr. Y's fixed-term employment contracts were for a temporary increase in activity.
The employer, followed in this by the first judge, explains that by its very nature, its activity of supporting the armies during operations abroad is random, linked to the decisions of the political power; that these assignments are by nature temporary and therefore cannot be a matter of providing for the normal and permanent activity of the company.
However, article L. 1244-3 of the Labor Code, which organizes the succession of contracts provides: “at the end of a fixed-term employment contract, it cannot be used to fill the position of the employee whose the contract ended, neither a fixed-term contract, nor a temporary employment contract, before the expiration of a waiting period calculated according to the duration of the contract ”.
Pursuant to Article L. 1244-3-1, this period is one-third of the term of the expired contract if the term of the contract is fourteen days or more.
Article L. 1245-1 provides that any employment contract concluded in violation of the aforementioned provisions is deemed to be of indefinite duration.
The judges of appeal affirm that in the present case, Mr. Y brought into the proceedings various elements in order to demonstrate that the post of head of general services which he occupied for about three months a year, sometimes four, was in fact filled permanently by several employees taking turns.
In particular, it produces the succession plan, which expressly mentions that employees succeed each other in the same functions.
It also produces e-mail exchanges demonstrating that an employee is arriving to replace another on departure, and that this situation was so systematic that a procedure for handing over the consignments had been put in place.
Without really contesting this continuity in the exercise of the missions temporarily entrusted to Mr. Y, the EDA states that the notion of waiting period is inseparable from that permanent employment, and underlines that in this case, employment in a theater of operations abroad, linked to political decisions beyond the control of both parties, is by nature temporary.
It is under these conditions that the employer uses the adage "the special law derogates from the general law".
He maintains that by application of the provisions of Article L. 3421-1 of the Defense Code, he exercises his activity under the control of the Ministry of Defense; that to avoid any disruption in the implementation of operations to support the French army, it is not in a position to apply the waiting period provided for by the Labor Code.
The Paris Court of Appeal affirms that however, the National Defense Code on which Mr. Y relies does not contain any provision derogating for the EDA from the obligation to respect the waiting period, so that the adage " the special law derogates from the general law ”does not apply.
In view of these elements, the request for the reclassification of an open-ended contract into a fixed-term contract will be granted.
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Frédéric CHHUM lawyer and member of the Paris Bar Association (mandate 2019-2021)
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# 1 long travel allowances
# 2 long travel allowances
# 3 compliance with the elimination period
# 4 temporary increase in activity
# 5 requalification of fixed-term contracts
# 6 requalification of the indefinite contractual relationship
# 7 damages for dismissal without real and serious cause
# 8 request for the delivery of documents