Since the two opinions given by the Court of Cassation on 17 July 2019 (1), the first judgments of the Courts of Appeal ruling on the conformity of the provisions of Article L. 1235-3 of the Labor Code (2) with the international texts were eagerly awaited. After the Reims Court of Appeal on September 25 (3), the Court of Appeal of Paris was positioned on October 30 following (4).
1. From recall of facts to dismissal without real and serious cause
Mr. X. was hired as a Junior Analyst on December 31, 2003, on a permanent contract, with a resumption of seniority on March 1, 2001, when he began to practice in the employing company as an analyst. technical.
He was dismissed 16 years later, on the ground that he had demonstrated a "mistrust of [his] hierarchy" and would have demonstrated "hostility [behavior] considered unacceptable". He is also reproached for having "[refused] to learn Python language", which would have resulted in the assignment of another employee urgently on the task at hand.
The employee tries to make say and judge that the rupture of his contract of employment is analyzed in a dismissal without real and serious cause. He relies in particular on the prescription of the facts alleged against him, which date in large part "from April to October 2017". The only alleged wrongful act - the refusal to train "in the Python language" - is considered to be "not characterized or proven" by the Paris Court of Appeal.
The judges of the merits therefore considered that "the dismissal of Mr X must be declared devoid of real and serious cause".
Thus the fight over the compliance of the "Macron Scale" scale provided for in Article L. 1235-3 of the Labor Code was opened again.
2. The decision of October 30th, 2019 (Pole 6, Chamber 8)
Although the employer tried to remove them from the dispute, the unions CGT, CGT-FO, Solidaires and CFDT intervened.
Indeed, regarding the conventionality of the scale, they considered that "the debate goes beyond the employer / employee relationship".
The unions taken as a whole and Mr X. have put forward several arguments to remove the scales.
The opportunity was therefore given to the Paris Court of Appeal to rule in an unprecedented manner in relation to the opinions given by the Court of Cassation on July 17 (op cit).
2.1. The conformity of the Macron scale (bareme Macron) with Articles 6 and 13 of the European Convention for the Protection of Human Rights (5)
Considering that Article 6 of the said Convention, which guarantees "the right to a fair trial", does not have to apply to the material limitations of the right to compensation following dismissal without serious cause, the Court rejects this argument.
It reserves the same fate with the invocation of Article 13 preserving the right to an "effective remedy before a national authority" by considering that between the limits of the scale "it is up to the judge seized to the substance to decide".
2.2. The conformity of the Macron scale with Article 24 of the European Social Charter
Similarly, the plea based on compliance with the "provisions of Article 24 of the European Social Charter revised on 3 May 1996" (6) is unsuccessful according to the judges, for whom these provisions "do not have direct effect in law". in a dispute between private individual "and" can not usefully be invoked by the appellant and the intervening parties to see the provisions of Article L.1235-3 of the Labor Code ".
2.3. The conformity of the Macron scale (Bareme Macron) with Articles 20, 21 and 30 of the Charter of Fundamental Rights of the European Union
The unions argued "that the scale established by Article L.1235-3 of the Labor Code, by not providing other criteria for differentiation that the seniority of the employee and the workforce of the company" treated "of employees in different situations in breach of the principles of non-discrimination and equal treatment 'as laid down in the Charter of Fundamental Rights of the European Union (7).
For their part, the judges of the Court of Appeal of Paris, in the judgment of October 30, 2019, found that "the provisions of Article L.1235-3 of the Labor Code leave between a minimum limit and a maximum limit expressed in months of gross salary ".
Thus, there remains "a discretionary power to the court of the merits, so that compensation meets the particular situation of the employee, by taking into account criteria other than seniority, such as age, family situation, the difficulty of finding a job "so that" the alleged inequality of treatment is not demonstrated ".
On this point, the Court of Cassation had not pronounced in its two opinions rendered in July 2019. The Court of Appeal completely rejects this plea.
2.4. The conformity of the Macron Schedule with Articles 4, 9 and 10 of ILO Convention No. 158 (8)
To begin with, the judges of the merits consider that "these articles of Convention No. 158 on the dismissal of the International Labor Organization are of direct application in domestic law".
The Court of Appeal states that "the introduction of a scale is not in itself contrary to the texts referred to by the appellant and the voluntary unions".
Indeed, the scale would "guarantee to the employee" adequate compensation or appropriate compensation "" since "the French judge within the framework of the minimum and maximum amounts enacted on the basis of the seniority of the employee and the number of employees. the company, [keep] a margin of appreciation "(CA Paris, October 30, 2019).
And to conclude that "it is appropriate to allocate to Mr X the sum of 67 900 euros corresponding to the equivalent of 13 months of gross wages, this amount offering adequate compensation for the damage resulting from the unfounded nature of the dismissal".
3. For the Paris Court of Appeal: from flexibility to firmness
The breach of non-compliance with international texts was quietly opened by the Court of Appeal of Paris, Pole 6, Chamber 3, in a first judgment dated 18 September 2019 (9).
Indeed, it stated that in accordance with the requirements of Article 10 of ILO Convention No. 158 and Article 24 of the European Charter, "compensation up to the two months provided for in the scale of constitutes an adequate and appropriate compensation for the particular situation ".
Consequently, there was "no need to derogate from the regulatory scale and to consider the scale contrary to the above-mentioned conventions".
The wording could have hit the nail on the head because the answer was expressly circumscribed "to the situation of the species", which did not require a "derogation from the regulatory scale".
On reading such a formulation, the possibility was open to the judge to reject the scale whenever he considered it necessary.
Article L. 1235-3 would have lost its binding nature.
For its part, the Court of Appeal of Reims, by the judgment rendered on September 25, 2019, appeared to rush indirectly into the same breach. For its part, it decided that "the control of conventionality does not dispense, in the presence of a device deemed conventional, to assess whether it does not disproportionately affect the rights of the employee concerned".
Thus, it stated that it was possible to conduct a "search for proportionality, this time heard" in concreto "and not" in abstracto ", which should have been" requested by the employee ".
However, the Court of Appeal of Paris (Pole 6, Chamber 8) has departed well from such convolutions to make a judgment that leaves no room for doubt.
A question continues to animate the commentators: will the dissensions between the province and the capital flourish even in the Courts of Appeal so that the scale is spread elsewhere in France?
Opinion of the Court of Cassation rendered on July 17, 2019, n ° 15012 and 15013:
https://www.courdecassation.fr/jurisprudence_2/avis_15/avis_classes_date_239/2019_9218/17_juillet_2019_1970010_9442/15012_17_43209.html et https://www.courdecassation.fr/jurisprudence_2/avis_15/avis_classes_date_239/2019_9218/17_juillet_2019_1970011_9443/15013_17_43210.htmlL. 1235-3, Labor Code: https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000036762052&cidTexte=LEGITEXT000006072050&dateTexte=20180401 Court of Appeal of Reims, September 25, 2019: https://www.dalloz-actualite.fr/sites/dalloz-actualite.fr/files/resources/2019/09/doc250919-25092019123807.pdf Court of Appeal of Paris, October 30, 2019: https://revuefiduciaire.grouperf.com/plussurlenet/complements/CA_Paris_30_10_19_Bareme_Macron.pdf European Convention for the Protection of Human Rights, art. 6 and 13: https://www.echr.coe.int/Documents/Convention_ENG.pdf Article 24 of the European Social Charter guarantees the "right to protection in the event of dismissal": https://www.cncdh.fr/sites/default/files/charte_sociale_europeenne_revisee_0.pdf (7) Charter of Fundamental Rights of the European Union, art. 20, 21 and 3: https://www.europarl.europa.eu/charter/pdf/text_en.pdf
(8) ILO Convention No. 158, art. 10: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C158
(9) Court of Appeal of Paris, September 18, 2019:
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris
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