French Labour law - Judicial Termination (résiliation judiciaire): in the event of non-payment of overtime, the judicial termination is justified (CA Paris July 2nd, 2019)

1) Facts and procedure

Mr. X was hired by IFOCOP as of October 7, 2010, as Training Manager, under three replacement CDDs without a definite term.

As of November 7, 2011, Mr. X was hired on a permanent contract.

On December 12, 2014, Mr. X appealed to the Labor Court of Paris in judicial termination of his employment contract arguing in particular the harassment of which he was victim as well as reminders of wages for overtime.

On November 20, 2015, Mr. X was fired for real and serious reasons.

By judgment of 6 April 2017, the Labor Court, in its tiebreaker, sentenced IFOCOP to pay Mr. X the sum of 4,000 euros as salary recalls, in addition to the sum of 400 euros for paid vacation leave.

Mr. X appealed this judgment.

2) The judgment of the Paris Court of Appeal of 2 July 2019

In its judgment of 2 July 2019, the Paris Court of Appeal:

- Confirms the judgment of the Labor Court in that it denied Mr X of his demands relating to the moral harassment and the obligation of security of result;

- Requalify Mr X's fixed-term contract of 1 August 2011 on a permanent contract;

- pronounces the judicial termination of the employment contract to the fault of the employer;

- Condemns IFOCOP to pay Mr X the following sums:

-2000 euros as requalification allowance;

-7,713.14 Euros as overtime reminders made between 7 October 2010 and 31 December 2014 plus 771.31 euros as paid leave;

-607.82 euros as compensation for compensation for compensatory rest in respect of 2011;

-250euros of damages for non-observance of the maximum daily working time;

-250euros of damages for non-compliance with the maximum weekly working time;

-250euros of damages for non-compliance with the periodic medical examination;

-10,000 euros as damages for dismissal without real and serious cause;

-13,490.10euros as compensation for concealed work;

- EUR 2,000 under Article 700 of the CPC.

- Recalls that the wage claims bear interest at the legal rate as from the receipt by the employer of his summons before the labor court while the indemnity claims bear interest at the legal rate starting from the decision by fixing everything at the times the principle and the amount.

- Orders the reimbursement by IFOCOP to Pôle Emploi of the unemployment benefits possibly paid to the employee since his dismissal within the limit of one month of indemnity.

3) The Court of Appeal pronounces the judicial termination of Mr. X's employment contract with the wrongs of IFOCOP

3.1) On the request to requalify Mr. X's fixed-term contracts on CDI

Mr X requested the requalification of his replacement CDD on permanent contracts.

The Court of Appeal first held that Mr. X's claim was not time-barred.

Thus, the Court of Appeal recalls that Mr. Z appealed to the industrial tribunal and filed his request for requalification on December 12, 2014, after the entry into force of the new law.

At the date of the promulgation of the new law, that is to say on June 17, 2013, the five-year prescription on the request for requalification of its fixed-term contracts concluded between 2010 and 2011 was not acquired, so that the new deadline of 2 years began to run on that date without, however, that the total duration of the prescription could exceed the five-year period provided for by the previous law.

It follows that the employee's requests for re-qualification of fixed-term employment contracts concluded as of October 7, 2010 expiring on May 14, 2011 and in payment of a requalification allowance are not prescribed because of the interruption. of the prescription by the referral, on December 12, 2014, of the industrial tribunal, and that consequently they are receivable.

Next, the Court of Appeal notes that Article L.1242-7 provides that when the fixed-term contract contains an imprecise term must be concluded for a minimum duration, failing which, the contract is deemed to have an indefinite duration.

In this case, the third fixed-term contract entered into by Mr X did not have a minimum duration so that the requalification of the contractual relationship was necessary.

3.2) Judicial termination of Mr X's employment contract with the exclusive wrongs of IFOCOP

a) On moral harassment (harcèlement moral)

The Court of Appeal first recalled that pursuant to Article L. 1152-1 of the Labor Code, no employee shall be subjected to repeated acts of moral harassment which have as their object or effect a deterioration of his or her working conditions that could affect his rights and dignity, alter his physical or mental health or jeopardize his professional future.


Under Article L1152-2 of the Labor Code, no employee may be sanctioned or dismissed for having suffered or refused to undergo acts of moral or sexual harassment, or for having testified of such facts or for having related them.

According to Article L. 1154-1 of the same Code, when a dispute concerning harassment arises, the employee establishes facts that make it possible to presume the existence of harassment and, in view of these elements, it belongs to the employee. employer to prove that such conduct does not constitute such harassment and that its decision is justified by objective factors unrelated to any harassment.

By application of article L1152-3, any decision or act contrary to the provisions of the aforementioned articles is void.

It is imposed on the employer by Article L1152-4 to take all necessary measures to prevent acts of moral harassment.

In addition, the employer, having an obligation of security of result towards his employees, must ensure its effectiveness in application of the provisions of Article L. 4121-1 of the Labor Code.

In this case, Mr X was giving the debates certificates describing a deleterious climate within the training center but also demonstrated that in a 2014 evaluation he had reported suffering at work.

Mr. X also denounced a letter of order to order that he considered unjustified, to have been removed from a promotion and put away in February 2015.

Lastly, Mr X was distributing medical certificates testifying to the deterioration of his state of health.

The Court of Appeal deduced from these elements, taken as a whole, that Mr. X established the materiality of precise and concordant facts in support of his claim.

Nonetheless, the Court of Appeal found that IFOCOP demonstrated that its decisions were justified by elements external to any moral harassment.

Thus, the Court of Appeal considers that the radically different management found by Mr. X in the two training centers to which he was assigned does not demonstrate how the working conditions were unbearable.

In addition, the trial judges found that the referral to the CHSCT for investigation was not late.

(b) Overtime payments, non-compliance with the annual overtime quota, and failure to work overtime

In support of his request for overtime, Mr X was in the discussion:

- a summary table of the overtime he claims to have performed;

-the IFOCOP's score sheets used as a basis for the above table, showing the arrival, break and departure times at the end of the day;

- testimonials from employees confirming Mr X's presence beyond working hours.

Also, the Court of Appeal considered that Mr. X produced preliminary elements that could be discussed by the employer and that are likely to support his request.


In response to these elements, IFOCOP observed that it had never given Mr. X permission to perform these overtime hours.

The Court of Appeal observes, however, that it is a right that the fact that the employee did not seek prior authorization from his management to work overtime, the existence of which the employer could not ignore, has no effect. the right of the person concerned to obtain the payment of overtime worked.

In the same way, it is accepted that the absence of prior authorization does not in itself exclude the tacit agreement of the employer, since it follows that the latter was informed by the time cards, hours employees who had not objected and therefore consented to their fulfillment.

In light of this, the Court of Appeal found that overtime was owed.

In addition to the payment of overtime, the Court of Appeal also ordered IFOCOP to pay compensation for non-compliance with the annual overtime quota and for non-compliance with the maximum legal daily and weekly working hours. .

c) IFOCOP's breaches of its salary obligations justify the judicial termination of Mr X's employment contract

The Court of Appeal therefore holds, in view of the foregoing, that the employer has repeatedly failed to comply with its salary obligations and in particular with respect to the payment of the share of wages represented by overtime or conventionally authorized quota for these overtime hours and to a lesser extent on the daily or maximum hours of work.

The Court of Appeal deduces that the employer has thus failed in its essential obligations inherent to the employment contract and that these failings were such as to prevent the continuation of the employment contract.

The Court of Appeal thus fixed the date of termination of the contract on the date of sending the letter of dismissal and sentenced IFOCOP to pay Mr. X the sum of 10,000 euros in damages for dismissal without cause real and serious.

(d) The allowance for covert work


Lastly, the Court of Appeal sentenced IFOCOP to a concealed work allowance, stating that because of the existence of the scorecards and the instructions given to the heads of departments on the respect of the hourly amplitudes, the employer could ignore the existence of the overtime worked.

In addition, the Court of Appeal notes that Mr. X's pay slips systematically mentioned a working time of 151.67 hours and that IFOCOP did not explain why overtime was not included in the notice. the pay slips.

(e) Damages for non-compliance with the provisions of the periodic medical examination

Mr. X argued that with the exception of the hiring medical examination in October 2010, he had only been summoned to one periodic medical examination on January 7, 2015.


IFOCOP replied that it was affiliated with a center of occupational medicine but that if Mr. X had not been convened it is because of its various mutations.

Article R.4624-10 of the Labor Code in its version applicable to the dispute provides that "the employee shall receive periodic medical examinations, at least every twenty-four months, by the occupational physician".

In this case, the employer does not submit the evidence required of him to have fulfilled this obligation, so that the breach is characterized, the employer having failed in his obligation of chief.

In the state of the explanations and the documents provided, the Court of Appeal considered that this lack of medical follow-up had caused the employee an injury that had to be compensated up to 250 euros.

Frédéric CHHUM, Avocat et membre du conseil de l’ordre des avocats de Paris

Camille Bonhoure, Avocat

CHHUM AVOCATS (Paris, Nantes, Lille)
email : chhum@chhum-avocats.com
Twitter : @fchhum

Instagram : fredericchhum



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