Nov
06
French labour law - Judicial termination (résiliation judiciaire): the unlawfulness of a flat rate agreement (forfait jours) justifies the judicial termination of an employment contract (CA Paris June 11th 2020)

In a decision dated June 11th 2020 (RG n°18/02313), the Paris Court of Appeal pronounced the judicial termination of the employment contract of a technical manager of Silverway Media International with a flat rate agreement (forfait jours), producing the effects of a dismissal without real and serious cause following various repeated breaches by the employer.

Judicial termination of the employee's employment contract is annulled on the grounds of the unlawfulness of the flat rate agreement (forfait jours), and the employee's claims for unpaid overtime, lack of medical examinations, lack of respect for the right to rest and daily working hours, and wrongful demands by the employer during a stoppage of work, are granted.

The judgment is final.

1) Reminder of the facts.

Mr. X was hired by Silverway Media International as technical manager from 20 August 2012 under a permanent employment contract with a flat rate agreement (forfait jours) of 218 days per year.

On July 26, 2016, Mr. X applied to the Paris labour tribunal (Conseil de prud'hommes) to obtain, in particular, the judicial termination of his employment contract at the sole fault of the employer.

In a letter dated 28 July 2016, Mr. X was summoned to a preliminary interview scheduled for 9 August 2016 with a view to possible dismissal.

He was notified of a dismissal for serious misconduct on 31 August 2016.

In a judgment dated 3 January 2018, the Paris labour tribunal (Conseil de Prud’hommes, section Encadrement) dismissed the employee's claims.

On 1st February 2018, Mr. X appealed against the judgment.

2) Decision of the Paris Court of Appeal of June 11th 2020 (Pôle 6, chambre 7): the employer's repeated breaches are sufficiently serious to justify the judicial termination of the employment contract in favour of the employee.

The Paris Court of Appeal, ruling publicly, in a contradictory judgment, as a last resort, overturned the judgment of the Conseil de Prud’hommes of January 3, 2018 and

  • pronounces the judicial termination of the employment contract with effect from 31 August 2016;
  • Condemns Silverway Media International to pay Mr. X the following sums:

- 13,268.79 euros for overtime worked in 2014, 2015 and 2016;

- 1,326.87 euros in respect of related paid holidays;

- 500 euros in damages and interest to compensate for the loss suffered as a result of the failure to provide medical examinations on recruitment and periodic medical check-ups;

- 500 euros in damages for failure to respect the right to daily rest;

- 500 euros for failure to comply with the provisions on daily working hours;

- 11,475 euros gross of compensation in lieu of notice;

- 1,147.50 euros gross in respect of related paid holidays;

- 4,590 euros gross in conventional redundancy pay;

- 15,300 euros in compensation for dismissal without real and serious cause;

- 500 euros in damages for late declaration to the pension fund.

2.1) The Court of Appeal pronounces the judicial termination of the employment contract of the Technical Manager of Silverway Media International which produces the effects of dismissal without cause.

Mr. X's main claim is that the Paris Court of Appeal should order the judicial termination of the employment contract against Silverway Media International.

The Paris Court of Appeal first of all and in a general manner state that "the judicial termination of an employment contract may produce the effects of dismissal without real and serious cause in the event of breaches by the employer of sufficient gravity and of such a nature as to prevent the continuation of the contract".

In this context, Mr. X invokes eight breaches by the employer, which the Paris Court of Appeal examines successively.

2.1.1) Unlawfulness of the flat rate agreement (forfait jours) with lack of control of working time by the employer.

Firstly, the employee invokes the unlawfulness of the flat rate agreement (forfait jours), arguing that:

- no working time control document was kept;

- there was no regular monitoring of the workload and no annual interviews either;

- the scope of the work was unreasonable, sometimes working more than 13 hours a day.

On the basis of Article 5.6.3 of the national collective bargaining agreement for technical companies working in the creative and event sectors, the Paris Court of Appeal noted, in particular, that "the flat rate agreement (forfait jours) is accompanied for each employee by a check on the number of days or half-days worked, by means of a monthly control document showing the number and date of the days worked, as well as the classification of days not worked as weekly rest, paid leave or rest day for the purpose of reducing working time. Once a year, each employee who has signed flat rate agreement (forfait jours) is entitled, at his or her request, to an interview with his or her superior during which the work organisation, the resulting workload and the length of the days are discussed. »

In this case, the Paris Court of Appeal noted that "if the employer criticises the employee's position, he provides absolutely no evidence that he applied the provisions of the collective agreement on the control of working time during the employment relationship, which lasted nearly four years".

The appeal judges deduced from these elements that "the flat rate agreement (forfait jours) is therefore deprived of effect with respect to the employee" and considered that "the employer failed to fulfil its obligations in this regard".

Thus, the judges of appeal ruled that the flat rate agreement (forfait jours) was unlawful as a result of the employer's failure to fulfill its obligation to control working time.

2.1.2) On unpaid overtime work: the importance of providing accurate evidence.

Second, Mr. X claims to have worked 443 hours of unpaid overtime from July 26, 2013 to August 31st, 2016.

With reference to Articles L3171-2, paragraph 1, L3171-3 in its wording prior to that resulting from Law no. 2016-1088 of 8 August 2016 and L. 3171-4 of the labour Code , the Paris Court of Appeal recalled that "when all employees working in a department or workshop do not work the same collective working hours, the employer shall draw up the documents required to calculate the working hours, the compensatory rest periods acquired and the actual time taken, for each of the employees concerned".

It also points out that "the employer shall make available to the labour inspector or controller the documents enabling the working time of each employee to be counted. The nature of the documents and the length of time they are kept at the employer's disposal shall be determined by regulation".

It adds that "in the event of a dispute concerning the existence or number of hours worked, the employer shall provide the judge with information to justify the hours actually worked by the employee (...). It is up to the employee to present, in support of his or her claim, sufficiently precise information regarding the unpaid hours that he or she claims to have worked in order to enable the employer, who monitors the hours worked, to respond usefully by producing his or her own information".

"The judge forms his conviction by taking into account all of these elements with regard to the requirements set out in the aforementioned legal and regulatory provisions. After analysing the documents produced by both parties, in the event that the judge finds that overtime work was incurred, he or she will assess the amount of overtime without being required to specify the details of the calculation, and will determine the related wage claims.

In this case, the Paris Court of Appeal noted that "for the year 2013, Mr. X provides a table indicating for each week the number of hours worked and the number of overtime hours for the week, but without providing day-by-day indications and without indicating in particular the start and end time of the working day".

In this respect, the appeal judges consider "that these elements are not sufficiently precise to conclude that they are such as to support the request" for unpaid overtime for the year 2013.

For the years 2014 to 2016, the Paris Court of Appeal noted that the employee "provides, for each day of the period, the date of arrival at work, the date of departure, the number of hours per day, deducting the lunch break, and specifying the days on which he or she did not work due to absence or leave".

Consequently, the Court of Appeal considered that the information produced by the employee is "sufficiently precise within the meaning of the above principles, so that it is up to the employer to justify the hours actually worked by the employee. »

However, on this point, the Court of Appeal noted that "the employer merely criticized the information provided by the employee and produced certificates from various employees indicating in substance that Mr. X usually arrived at work late in the morning, but did not justify the hours actually worked as he should have done in application of the above principles. »

In the light of these various elements, the Paris Court of Appeal ordered the employer to pay the following sums:

- 13,268.79 euros for overtime work;

- 1,326.87 euros in respect of related paid leave.

2.1.3) On concealed work: rejection of the employee's claim.

Thirdly, Mr. X maintains that the employer must be convicted for concealed work, firstly because of the overtime hours worked which have just been mentioned and secondly because he worked, prior to his hiring, for the employer from 4 June to 17 August 2012 without being declared or paid.

In this respect, the Paris Court of Appeal points out that "the existence of the overtime hours withheld in view of the fact that the flat rate agreement (forfait jours) is deprived of effect does not imply that the employer intentionally intended to carry out concealed work within the meaning of Article L8223-1 of French labour Code".

The appeal judges noted in this case that "Mr. X admits in his conclusions that he was working for another company on a full-time basis in June, July and August 2012".

Furthermore, the Court of Appeal added that "if the employee exchanged a number of e-mails between 9 and 27 June 2012 with Mr. Y, who was behind the creation of Silverway Media International, it should be noted that these exchanges were formulated in a friendly tone and that they certainly concerned technical aspects (IP address, transfer rate, downloads) but did not make it possible to deduce the existence of work performed by Mr. X, nor the existence of a relationship of subordination".

The appellate judges consider in light of these elements that "the claim for the concealed work must be rejected".

Thus, the Paris Court of Appeal confirmed on this point the judgment handed down by the Conseil de Prud’hommes, which did not uphold the claim for concealed work.

2.1.4) On the non-payment of the compensatory time (Réduction du temps de travail, RTT): rejection of the claim.

Fourthly, Mr. X maintains that the employer did not pay him any RTT during the employment relationship, whereas eight days were due to him in 2013 and 2014 and 10 days in 2015 and 2016.

In this respect, the Paris Court of Appeal noted, as did the employer, that "Mr. X bases his claim on a provision of the collective agreement (article 5.6.3, b) according to which employees subject flat rate agreement (forfait jours) benefit annually from additional rest days as a reduction of working time (...)".

However, "since this provision applies to employees subject to a flat rate agreement (forfait jours)", the Court of Appeal held that "M.X. cannot usefully rely on it when the flat rate agreement that was stipulated in his employment contract is declared, at his request, to be of no effect".

Thus, the Paris Court of Appeal did not grant the employee's request for payment of his RTT.

2.1.5) On non-compliance with the employer's obligations with regard to compulsory medical check-ups on recruitment or periodic check-ups = employer's breaches.

Fifthly, Mr. X pleads that the employer did not comply with its obligations with regard to compulsory or periodic medical check-ups, despite the fact that he was aware that he had previously been a victim of burn-out and that he had attempted suicide in 2008. However, he states that he was taken off work for overwork prescribed by a psychiatrist on 12 July 2016 and then for burn-out.

The Paris Court of Appeal upheld the fifth breach invoked by the employee relating to the employer's failure to comply with its obligations in terms of compulsory medical check-ups on recruitment or periodic medical check-ups.

With reference to Articles R4624-10 and R4624-16 of French labour Code in the wording applicable to the case, the Paris Court of Appeal noted that "a medical examination on recruitment and periodic visits should have been organised".

The appeal judges noted in this case that "it is common ground that these visits did not take place and that the employer does not justify having taken steps with the occupational health services to organise them".

They added that "although it has not been established that the employer was aware of the personal difficulties experienced by the employee in 2008, the fact remains that the organisation of these visits could have prevented the difficulties that arose in 2016".

Thus, the Paris Court of Appeal considered that "the employer failed to fulfil its obligations and the employee suffered prejudice".

In this respect, it ordered Silverway Media International to pay the employee "the sum of 500 euros in compensation for the non-pecuniary damage suffered, since the absence of medical visits did not make it possible to detect the difficulties encountered by the employee in good time".

2.1.6) Failure to comply with the legal provisions on maximum working hours and the right to rest = employer’s breach.

In the sixth place, Mr. X argues that the employer has not complied with the legal provisions on working hours and states that the right to daily rest of 11 consecutive hours was not respected on 17 occasions and the maximum daily working time was not respected in 12 cases.

Under the terms of Articles L3121-35 and L3121-36 of French labour Code defining maximum weekly working hours and Article L3121-36 of the same code, the Paris Court of Appeal points out that "all employees benefit from a daily rest period of at least 11 consecutive hours".

In this case, it noted that "the employer does not provide any information making it possible to ensure that these provisions have been complied with. It merely criticized the information provided by the employee with respect to four of the 29 dates on which he claimed that these provisions had not been complied with.

In light of these elements, the appeal judges considered that "the employee suffered moral prejudice in this respect".

Consequently, the Paris Court of Appeal upheld the sixth infringement relating to the failure to comply with the legal provisions on working hours invoked by the employee.

It thus ordered the employer to pay Mr. X the sums of :

- 500 euros in damages for breach of the right to daily rest;

- 500 euros for failure to comply with the provisions relating to daily working hours.

2.1.7) On the request of the employee by the enterprise during a work stoppage due to illness = employer’s breach, but no damage established by the employee.

Seventhly, Mr. X claims that the employer forced him to work during a sick leave from 11th to 17th July 2016.

The Paris Court of Appeal in this case noted that "it follows from the employer's conclusions that Mr. X was indeed called upon to work during a sick leave but only on an ad hoc basis".

In light of these elements, the appeal judges deduced that the grievance was well-founded.

However, they consider that "the employee does not prove the reality of the prejudice he alleges, so his claim for damages must be rejected".

2.1.8) On the employer's failure to comply with its obligation of security (obligation de sécurité).

Eighth, Mr. X claims that the employer failed to comply with its obligation of security (obligation de sécurité) in light of :

- the workload it imposed on him;

- the breach of rest periods;

- the lack of measures taken to safeguard his health;

- the lack  of medical visits.

With regard to this grievance, the Paris Court of Appeal noted that "Mr. X here alleges the employer's aforementioned failures, which have been upheld and which give rise to an order for the employer to pay damages".

Moreover, the appeal judges noted that the employee "does not invoke different elements but merely invokes a different qualification for identical failures".

Consequently, the Paris Court of Appeal dismissed the employee's claim for breach of his employer's obligation of security and the related damages.

2.2) Sufficiently serious breaches that justify the judicial termination of the employment contract in favour of the employee.

The Paris Court of Appeal declares the following grievances well-founded:

- the unlawfulness of the flat rate agreement (forfait jours);

- the unpaid overtime work;

- the lack of medical visits;

- the breach of the right to rest and daily working hours and the fact of having to respond to requests during a work stoppage.

In this respect, the appeal judges consider that "these breaches are sufficiently serious to justify the pronouncement of the judicial termination of the employment contract, with effect from 31 August 2016".

They added that "these breaches are repeated", that they "concerned several of the employer's obligations and make it impossible to continue the employment relationship in that some of them concern obligations directly or indirectly related to the employee's health".

Consequently, the Paris Court of Appeal ordered the employer to pay the following sums:

- 11,475 euros gross in compensation in lieu of notice, based on a reference salary of 3,825 euros, with Article 4 of the collective agreement providing for a three-month notice period;

- 1,147.50 euros gross in respect of related paid holidays;

- 4,590 euros gross in contractual redundancy pay;

- 15,300 euros in compensation for dismissal without real and serious cause.

2.2.1) On the claim for damages for late declaration to the pension fund.

Mr. X indicates that :

- he was placed on sick leave on 20 July 2016 ;

- he was dismissed on 31 August 2016;

He also states that "the employer received the daily social security benefits without paying them to him and had still not notified the provident fund of his situation on 15 November 2016".

In this regard, the Court of Appeal noted that "the employer did not provide any evidence to the contrary, even though Mr. X produced an email from the provident fund on November 15th, 2016 indicating that he was awaiting a return from the employer regarding the benefits for work stoppage since July 22nd, 2016".

Consequently, the appeal judges found that "the employer committed a breach which caused the employee financial damage justifying the award of 500 euros in damages, since it is clear from the evidence in the case that the employer's inertia did not allow the employee to receive compensation in due time for a total of 3,643.20 euros".

2.2.2) On social documents.

The Paris Court of Appeal condemned the employer, "without any penalty payment, to provide Mr. X with a summary pay slip, an employment certificate and a Pôle Emploi certificate in accordance with this ruling".

2.2.3) On the counterclaim for days of absence.

The employer is seeking an order that the employee be ordered to pay him the sum of 4,413.25 euros on the grounds that he was granted 25 days of unjustified absence between 1st January 2013 and  August 31st 2016.

In support of his claim, the employer produces, for each of these days, an e-mail or SMS sent by Mr. X, which essentially indicates that he cannot visit his place of work.

The Court of Appeal noted that "Mr. X does not dispute the reality of the elements produced by the employer regarding these absences.

Thus, it allowed the employer's request.

2.2.4) On the request for the badges.

The employer requested that Mr. X be ordered to return the badges for access to the company and to the company car park, subject to a penalty payment.

The Court of Appeal granted the employer's request, as Mr. X did not respond to it.

2.2.5) On Article 700 of code of civil procedure

Requests made under Article 700 Code of civil procedure by the parties are rejected by the Paris Court of Appeal.

Sources :

Paris Court of Appeal, Pôle 6, chamber 7, 11 June 2020, n°18/02313

Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

Traduction : Giulia Marcie

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

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