frederic.chhum

Par frederic.chhum le 24/07/19
Dernier commentaire ajouté il y a 2 mois 4 semaines

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
www.chhum-avocats.fr
Twitter : @fchhum

Instagram : fredericchhum

 

 

Par frederic.chhum le 23/07/19
Dernier commentaire ajouté il y a 3 mois 13 heures

"Whistleblowers often risk their careers and livelihoods, and in some cases, serious repercussions on their finances, health, reputation and personal lives. In order to prevent wrongdoing and to defend the public interest, it is essential to ensure that those who dare to speak are properly protected. "

This is stated by the European Commission in its communication of 23th April 2018.

What measures are in place to protect whistleblowers? Who are the people concerned by the protection regime? Can all secrets be revealed? What is the evolution of whistleblower protection?

It is to all these questions that we will try to answer.

1) The legal status of the whistleblower (lanceur d’alerte) and its framework of protections created by Sapin II law

Law 2016-1691 of December 9th, 2016, known as the "Sapin Law" created a status for whistleblowers and thus offered them a protective regime.

According to the Defender's annual report (https://www.defenseurdesdroits.fr/en/annual-reports/2019/03/annual-repor...), the Sapin law "has allowed the emergence of a awareness of the role that everyone can play in the development of reports and in the moralization of public life ".

1.1) The definition of the whistleblower according to Sapin II law

 Article 6 of the Sapin II law defines the whistleblower as follows: "A whistleblower is a natural person who reveals or reports, disinterestedly and in good faith, a crime or offense, a serious and manifest violation of an international commitment duly ratified or approved by France, a unilateral act of an international organization taken on the basis of such an undertaking, law or regulation, or a serious threat or harm to the public interest, of which it has been personally aware. "

1.2) The general device for protecting whistleblowers

1.2.1) Certain secrets are excluded from the alert regime

It is important to note that the law excludes from the scope of the operative part "Facts, information or documents, whatever their form or medium, covered by the secrecy of national defense, medical confidentiality or the secrecy of relations between a lawyer and his client are excluded from the alert regime defined by this chapter. "(Article 6).

1.2.2) The reporting procedure to be followed

The reporting procedure to be complied with is described in article 8 of the Sapin 2 law.

The procedure must be carried out:

- To the hierarchical superior, direct or indirect, of the employer or a referent designated by him;

- In some cases, by outside and casual collaborators.

1.2.3) What protection?

Whistleblowers are protected against professional retaliation and thus benefit from a reduction in the burden of proof.

They also benefit from the regime of criminal irresponsibility in the event that the report resulted in the violation of a protected secret.

In addition, their identity is kept strictly confidential: non-compliance with the obligation of confidentiality of their identity is penalized, as is the fact of hindering the reporting, in any way whatsoever.

Moreover, in case of abusive procedure for defamation, the civil fine is doubled.

2) The rights defender (Défenseur des droits) has a guiding and protective role for whistleblowers

According to article 5 ° of article 4 of the organic law n ° 2011-333 of March 29th, 2011, the defender of the rights is in charge to direct towards the competent authorities any person signaling an alert under the conditions fixed by the law, to ensure the rights and freedoms of this person by ensuring his protection.

It should be noted that the role of the defender of rights is neither to judge if the alert is well founded, nor to treat the alert, nor to stop the facts or acts denounced.

2.1) The whistleblower's mission

At first, the rights defender analyzes the facts evoked by the person wishing to launch an alert.

Then, it tells the whistleblower how to make its alert (for example, what is the administrative authority to enter).

If the facts that the person wishes to relate do not fall within the protection of whistleblowers, the defender of the rights, having an orientation mission, inform him.

As part of its orientation mission, the human rights defender has published a practical guide explaining the rights of whistleblowers. (Guide - orientation and protection of whistleblowers, https://defenseurdesdroits.fr/en/guides/guide-orientation-et-protection-...).

2.2) The protection mission of the whistleblower

The mission of the rights defender is to stop retaliation against the whistleblower, which would have appeared as a result of his report.

In order to carry out this mission, the defender of rights may, in particular, use his powers of investigation as well as specific powers regarding the adjustment of the burden of proof.

3) The Legislative Millefeuille is a barrier to the effectiveness of an effective whistleblower and whistleblower

There are several legislative provisions regarding whistleblowers, in addition to the Sapin II law.

For example, the law of 27 March 2017 on the duty of vigilance of parent companies and corporate issuers that requires companies with at least 5,000 employees in France or 10,000 worldwide to establish a vigilance plan incorporating a mechanism alert or the Sarbanes-Oxley Act of 2002 which introduces other warning systems).

According to Jacques Toubon, defender of rights, there is a real "millefeuille des alerte" (Lamy Social Week, Nº 1862, May 20, 2019 - Is the "general" whistleblower protection regime the expression of a fundamental right ?).

As such, he asserts that there is a great need: "a review of the various whistleblower protection regimes with a view to making the legislation significantly more clear and operational".

According to him, "the simplification of the legislation and the security of the whistleblowers are indeed essential to create the conditions of an effective device of treatment of the reports and protection of their authors".

4) The adoption of a European directive on whistleblowers: towards an overall overhaul of French law?

On 16 April, the European Parliament adopted new whistleblower protection rules.

According to Pascale Lagesse, "the adoption of a European directive on the whistleblower could be the occasion of an overall overhaul of the French law of the alert which became more complex at high speed" (Social Week Lamy, Nº 1862, May 20, 2019 - Is the "general" whistleblower protection regime the expression of a fundamental right?

Indeed, the new text aims to encourage and protect the reporting of infringements of EU legislation.

Thus, the whistleblowers will have the choice between an internet report and an external report.

In addition, protective measures against reprisals by employers are put in place.

SOURCES:

- LAW n ° 2016-1691 of December 9th, 2016 relating to the transparency, the fight against the corruption and the modernization of the economic life

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000033558528&categorieLink id =

- Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee - Strengthening the protection of whistle-blowers at EU level - 23.4.2018 COM (2018) (http: //ec.europa .eu / transparency / regdoc / rep / 1/2018 / FR / COM-2018-214-F1-EN-MAIN-PART-1.PDF)

- Guide - orientation and protection of whistleblowers, https://defenseurdesdroits.fr/en/guides/guide-orientation-et-protection-des-lanceurs-dalerte

- Annual report of the defender of rights (https://www.defenseurdesdroits.fr/fr/rapports-annuels/2019/03/repport-annuel-dactivite-2018

Frédéric CHHUM, avocat and Member of the Council of the Bar Association of Paris (membre du conseil de l’ordre des avocats de Paris)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

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

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083

 

Par frederic.chhum le 18/07/19
Dernier commentaire ajouté il y a 3 mois 5 jours

On September 1st, 2019, companies between 251 and 1000 employees will have to publish their index equality Women / Men.

In the absence of publication, the penalty is the same as in the absence of any measure aimed at reducing wage differences, and may be as high as 1% of the remuneration and earnings received by the company (L. 2242-8 C.trav).

(See our article: Equal pay for women / men: how to calculate the index? Https://www.village-justice.com/articles/equality-sale-women-men-how-calculate-index.30749.html)

Decree No. 2019-15 of 8 January 2019 and No. 2019-382 of 29 April 2019 specified the implementation of the gender equality index.

This index makes it possible to calculate the pay gap between women and men in companies with more than 50 employees.

However, despite good intentions, many criticisms can be made about him.

This is the purpose of our article.

1) An irrelevant distribution of employees

The decree of June 8, 2019 allows to regroup the employees by professional categories: workers, employees, technicians / supervisors, engineers and managers.

A more detailed breakdown by branch classification or internal rating requires consultation with the CSE, which can be discouraging for the employer. (Annex 1 of Decree No. 2019-15 of January 8, 2019)

First criticism: the basics of initial comparisons are too broad and do not allow a relevant comparison of employees.

2) The weights of the indicators obscure the results

Of the 5 indicators, each represents a different level of points:

- Pay gap: 40 points;

- Difference in rate of individual salary increase: 20 points;

- Promotion rate gap: 15 points;

- Percentage of employees increased on their return from maternity leave: 15 points;

- Number of employees of the under-represented sex among the ten employees who received the highest salaries: 10 points.

But this distribution of points can allow an employer to ultimately get a good score even though the finding of inequality is present.

2.1) Obligation to increase the employees on their return from maternity leave (congé de maternité) : a non-sanctioned violation

The indicator for calculating the percentage of employees increased on their maternity leave returns is noted on 15 points.

This is a legal obligation provided for by Article L. 1225-26 of the Labor Code.

However, an employer whose score is 0/15 to this indicator may still obtain a score above 75 points.

On the other hand, an employer who would increase all her employees returning from maternity leave by an amount equivalent to 1 euro will get all the points, ie 15/15.

Second criticism: the violation of the legal obligation to increase the number of employees on their return from maternity leave has neither a pecuniary effect nor a particularly negative repercussion on the overall score of the indicator.

2.2) Application of a relevance threshold that mitigates pay gaps.

The Excel spreadsheet provided by the Ministry of Labor automatically applies what is called the "relevance threshold", which corresponds to a margin of tolerance [1].

The logic is to apply a deviation tolerance for such broad categories, grouping non-identical levels of responsibility, and not to penalize the company.

Two scenarios then appear to the employer:

It applies classical CSPs, its relevance threshold is 5%;

It applies a different distribution, finer, its relevance threshold is 2%.

However, a company that has an average pay gap of 15%, or 10% after the automatic application of the relevance threshold, can claim a score of 30/40 points and an overall score of 90/100.

Third criticism: the relevance threshold applied in terms of pay gaps makes it possible to conceal large differences that are not revealed by the final mark.

3) The indicators do not reflect the realities of the companies.

The indicators that have the most points - the gender pay gap and the individual earnings gap - overlook two very important aspects:

Part times;

The amount of the difference of increase.

In fact, this remuneration is calculated in full-time equivalent and excluded, in particular, overtime, or increases paid on Sundays or public holidays.

However, 85% of part-time jobs are held by women, erasing these structural differences is a part of the inequalities that is not taken into account [2].

Moreover, the reality of the increases is not taken into account, so that an increase in wages by the collective agreement will be considered as an increase.

As a result, according to this indicator men and women will have been increased, even if a woman will have just seen his salary revalued by ten euros, when a man will have touched him an increase of one hundred euros.

Fourth criticism: the indicators do not take into account individual growth gaps and partial times, giving a biased image of the reality of the company on gender equality.

4) The implementation of sanctions by the Labor Inspectorate a difficult project.

As for the amount of the sanctions, the control procedure and the implementation, the procedure remains unclear.

Especially since the government project projects a minimum of 7,000 inspections per year for labor inspectors [3].

Today there are just over 1,000 inspectors in France and the implementation of this decree must be done at constant strength.

Fifth criticism: the penalties provided by the deadlines granted are not dissuasive enough for companies.

5) A real lack of transparency.

The company must publish the index on its website, if it has one, or failing to bring it to the attention of its employees by any means.

The index corresponds to a score of 100 points resulting from the addition of the indicators.

Also, in our opinion, it is regrettable that the decree does not require the publication of all the indicators.

Sixth criticism: in the absence of the obligation to publish all indicators, the overall score is in no way revealing the real situation of the company.

In conclusion, despite good intentions, the Excel spreadsheet setup proposed by the Ministry of Labor and the implementation of the decree allow companies to easily hide discrepancies, and remain well below the legitimate expectations in terms of equality between women and men. / men.

Despite good intentions, the Gender Equality Index is not enough to stop wage disparities between women and men.

Frédéric CHHUM, Avocat et membre du conseil de l’ordre des avocats de Paris
Marion Simoné, Elève-avocat EFB Paris
CHHUM AVOCATS (Paris, Nantes, Lille)
email : chhum@chhum-avocats.com
www.chhum-avocats.fr
Twitter : @fchhum
Instagram : fredericchhum

 

 

[1] Lien vers le tableur.

[2] https://www.insee.fr/fr/statistique...

[3] Objectif de contrôle des inspecteurs du travail.

Par frederic.chhum le 12/07/19
Dernier commentaire ajouté il y a 3 mois 1 semaine

To satisfy its clients, CHHUM AVOCATS (Paris, Nantes, Lille) law firm ensures a legal and judicial permanence, in labor law (negotiation of a mutual agreed termination (rupture conventionnelle), dismissal (licenciement), judicial termination (résiliation judiciaire), act of rupture (prise d'acte), transaction (settlement agreement), moral or sexual harassment (harcèlement moral et sexuel), burn out, requalification of CDD / CDDU on permanent contract, referral to the labor tribunal on the merits and summary proceedings, equality between women and men (égalité femmes / hommes), calculation of the gender equality index (calcul index égalité Femmes / Hommes), etc.), in July and August 2019.

***

CHHUM AVOCATS ensures legal and judicial permanence in labor law (droit du travail) in July and August 2019.

Frédéric CHHUM is a member of the Paris Bar Council (member du conseil de l’ordre).

A lawyer from the firm CHHUM AVOCATS can receive you quickly, by appointment, during the months of July and August 2019, for advice or litigation.

The firm Frédéric CHHUM is a labor law firm based in Paris, Nantes and Lille.

It is composed of 5 lawyers (3 lawyers in Paris, 1 lawyer in Nantes and 1 lawyer in Lille) who are fluent in English.

CHHUM AVOCATS mainly defends employees (salariés), intermittent entertainers (intermittents du spectacle), journalists, executives (cadres), senior executives (cadres dirigeants), expatriate employees, seconded employees, works councils, SSCs, unions (syndicats), CHSCT.

He pleads daily, throughout France, before the Labor Court (substantive and referred), the High Court, the Criminal Court and the Court of Appeal.

***

Do not hesitate to contact us.

Yours truly,

Frédéric CHHUM, avocat and Member of the Council of the Bar Association of Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

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

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083

Par frederic.chhum le 12/07/19
Dernier commentaire ajouté il y a 3 mois 1 semaine

Pour satisfaire ses clients, le cabinet CHHUM AVOCATS assure une permanence juridique et judiciaire, en droit du travail (négociation d’une rupture conventionnelle, licenciement, résiliation judiciaire, prise d’acte de rupture, transaction, harcèlement moral ou sexuel, burn out, requalification de CDD / CDDU en CDI, saisine du conseil de prud'hommes au fond et en référés, égalité Femmes / Hommes, calcul de l’index égalité Femmes / Hommes,  etc.), en juillet et août 2019.

***

CHHUM AVOCATS assure une permanence juridique et judiciaire en droit du travail en juillet et août 2019.

Maître Frédéric CHHUM est membre du Conseil de l’ordre des avocats de Paris.

Un avocat du cabinet CHHUM AVOCATS peut vous recevoir rapidement, sur rendez-vous, pendant les mois de juillet et août 2019, pour un conseil ou un contentieux.

Le Cabinet Frédéric CHHUM est un cabinet en droit du travail implanté à Paris et à Nantes.

Il est composé de 5 avocats (4 avocats à Paris et 1 avocate à Nantes).

CHHUM AVOCATS défend principalement des salariés, intermittents du spectacle, journalistes, cadres, cadres dirigeants, salariés expatriés, détachés, Comités d’entreprise, CSE, syndicats, CHSCT.

Il plaide quotidiennement, dans toute la France, devant le Conseil de prud’hommes (fond et référés), au Tribunal de Grande Instance, au Tribunal Correctionnel et à la Cour d’Appel.

***

N’hésitez pas à nous contacter.

Bien à vous,

Frédéric CHHUM, Avocat à la Cour et Membre du Conseil de l’ordre des avocats de Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail : chhum@chhum-avocats.com

www.chhum-avocats.fr

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

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083

Par frederic.chhum le 12/07/19
Dernier commentaire ajouté il y a 3 mois 1 semaine

In a decision of May 15th, 2019 (n° 18-11.036), the Court of Cassation ruled that the compensation due to the union section representative (RSS) in case of violation of its protective status could not exceed 30 months’ salary.

1) Background

Employees holding a mandate in Article L. 2411 of the Labor Code, such as shop stewards or staff representatives, are protected against dismissal.

Thus, protected employees cannot be dismissed without the authorization of the labor inspector.

Therefore, the employee dismissed without authorization from the labor inspector can request his reinstatement.

If he does not request it, he is entitled to compensation for breach of protective status, equal to the remuneration he should have received since his eviction until the end of his period of protection.

The Court of Cassation, however, set a limit to this compensation by capping it at 30 months salary.

Applicable initially only to the elected representatives of the personnel (Cass.soc., April 15, 2015, n ° 13-24182), this ceiling was then extended to other protected employees.

The judgment of May 15, 2019 is part of this movement of harmonization. It effectively transposes the 30-month salary ceiling to union section representatives (RSS).

2) Facts and procedure

In this case, an employee is designated as a union representative on August 22nd, 2012. He is dismissed for serious misconduct on November 8th, 2012, without seeking the authorization of the labor inspector.

He appealed to the jugdment in nullity of his dismissal.

The case was brought before the Court of Appeal, which ordered the employer to pay compensation equal to the amount of wages that the employee should have received between the date of his eviction and the end of his period of protection. thirty-six months.

The employer then lodged an appeal on points of law.

3) Solution of the Court of Cassation

The Court of Cassation censored the reasoning of the appellate judges for calculating the compensation without taking into account the restriction of 30 months wages.

In its decision of May 15th, 2019, the Court of Cassation states that "the union representative who does not request the continuation of the employment contract unlawfully broken is entitled to compensation for violation of the protective status equal to the remuneration he would have from the moment of its expulsion until the expiry of the period of protection, within the limit of thirty months, the statutory minimum duration of the elected representatives of the staff increased by six months ".

The indemnity due to the union section representative in case of violation of the protective status is thus limited to a maximum of 30 months' salary.

4) Analysis of CHHUM AVOCATS (Paris, Nantes, Lille)

The 30-month salary limit, originally applicable to elected staff representatives (Cass.soc., April 15, 2015, No. 13-24182), was then extended to other types of mandates such as adviser prud'homal (Cass.soc, February 3, 2016, n ° 14-17000) or adviser of the employee (Cass soc, June 30, 2016, n ° 15-12982).

It is therefore in the interests of homogeneity that the High Court has transposed this limit to the representative of the trade union section.

Sources:

- Cass.soc., May 15, 2019, n ° 18-11036: https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000038507998&fastReqId=346172023&fastPos=1

 

- Article L. 2411-1 (Labor Code): https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000035652370&cidTexte=LEGITEXT000006072050&dateTexte=20180101

 

- Cass.soc., April 15, 2015, n ° 13-24182: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000030496756

 

- Cass, soc., February 3, 2016, n ° 14-17000: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000031988892

 

- Cass. soc, June 30, 2016, n ° 15-12982: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000032834207

 

Frederic CHHUM

Frédéric CHHUM Lawyer and member of the Paris Bar Council

Nina BOUILLON

CHHUM AVOCATS (Paris, Nantes, Lille)

www.chhum-avocats.fr

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

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083

Par frederic.chhum le 11/07/19
Dernier commentaire ajouté il y a 3 mois 1 semaine

The draft decree amending unemployment insurance was published by the newspaper Le Monde.

The social partners are to discuss it with the government on 16 July 2019.

This decree provides in particular:

- a tightening of the conditions of access to the regime;

- the introduction of the degression of benefits (from the seventh month) for the highest paid employees;

- a new method of calculating allowances.

We will publish shortly a comprehensive commentary on this draft decree.

It is available in the pdf below.

Yours truly,

Frédéric CHHUM

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

CHHUM AVOCATS (Paris, Nantes, Lille)

www.chhum-avocats.fr

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

.Paris : 4 rue Bayard 75008 Paris tel : 0142560300
.Nantes : 41, Quai de la Fosse 44000 Nantes tel : 0228442644

.Lille : 25, rue Gounod 59000 Lille tel : 0320135083

Par frederic.chhum le 11/07/19
Dernier commentaire ajouté il y a 3 mois 1 semaine

Le projet de décret modifiant l’assurance chômage a été publié par le journal Le Monde.

Les partenaires sociaux doivent le discuter avec le gouvernement le 16 juillet 2019.

Ce décret prévoit notamment :

un durcissement des conditions d’accès au régime ; la mise en place de la dégressivité des allocations (à partir du septième mois) pour les salariés les mieux payés ; une nouvelle modalité de calcul des allocations.

Nous allons publier prochainement un commentaire exhaustif sur ce projet.

Il est consultable dans le pdf ci-dessous.

Bien à vous,

Frédéric CHHUM

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

CHHUM AVOCATS (Paris, Nantes, Lille)

www.chhum-avocats.fr

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

.Paris : 4 rue Bayard 75008 Paris tel : 0142560300
.Nantes : 41, Quai de la Fosse 44000 Nantes tel : 0228442644

.Lille : 25, rue Gounod 59000 Lille tel : 0320135083

Par frederic.chhum le 08/07/19
Dernier commentaire ajouté il y a 3 mois 2 semaines

France was hit by an unprecedented heat wave from June 24th to June 30th, 2019.

The working conditions in companies are impacted and employees do not always know how to react to the situation.

So what are the obligations of the employer and what conduct should the employees take in case of heat wave, especially regarding its dress.

1) The obligations of the companies in France

In the labor code, there is no direct obligation for the employer regarding hot weather.

However, the employer must create working conditions that allow employees to work effectively without endangering their health or safety (Article L. 4121-1 of the Labor Code).

Article R 4225-2 also provides that "the employer shall provide workers with drinking water and fresh water for drinking".

Nevertheless, when the working conditions are excessive, the employee can assert his rights and more particularly his right of withdrawal (art L 4131-1 of the Labor Code).

The Labor Code does not define what "excessive working conditions" might be, but the employer must take steps to take any useful measure that enables the employee to work properly.

2) Heatwave at work: How to conduct for employees? Is there a right to withdraw (droit de retrait) for the employee?

When, with the heat, the working conditions deteriorate until reaching an "excessive" point, the employee can then use his right of withdrawal (droit de retrait).

The right of withdrawal (droit de retrait) can be analyzed as a freedom for the employee to assess almost completely whether he is exposed to a danger and if necessary to be able to withdraw from his place of work.

Article L 4131-1 of the French Labor Code specifies the conditions under which this right of withdrawal must be exercised; in this respect, this right may be exercised if the employee "has a reasonable reason to believe that the situation presents a serious and imminent danger to his life or health" but he must not abuse it on pain of a penalty from the employer.

When exercising this right, the employee continues to be paid and "no salary deduction can be taken against a worker or a group of workers who have withdrawn from a job situation. work which they had a reasonable cause to believe was a serious and imminent danger to the life or health of each of them "(Article L 4131-3 of the French Labor Code).

Regarding the unique case of employees working outside, it is advisable to encourage dialogue with the employer to, for example, modulate work schedules to avoid being exposed to the hottest hours.

3) Question of dress

3.1) Can the employer impose an outfit?

The employer may regulate the wearing of an outfit in particular provided that it is justified by the nature of the task to be performed and proportionate to the purpose (Art L 1321-3 of the French Labor Code).

Moreover, when the employee is in contact with customers, the employer can also impose dress code.

3.2) Is the freedom of the employee absolute?

The principle is the freedom for the employee to be able to dress as he wishes (Cass., November 6, 2001, n° 99-43988) but, as previously seen, the employer's power of direction allows him to to limit this freedom since it is not considered by the texts as a fundamental freedom.

However, the tolerance of the employer is greater when the country goes through heat episodes, so the employer / employee dialogue must be favored to ensure compliance with the company rules.

Sources :

Article L.4131-1 of the French Labor Code

https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006903155&cidTexte=LEGITEXT000006072050&dateTexte=20190708&oldAction=rechCodeArticle&fastReqId=438357419&nbResultRech=1

Article L.4121-1 of the Labor Code

https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000035640828&cidTexte=LEGITEXT000006072050&dateTexte=20190708&oldAction=rechCodeArticle&fastReqId=511737843&nbResultRech=1

Article L.4131-3 of the Labor Code

https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006903157&cidTexte=LEGITEXT000006072050&dateTexte=20080501

Article R.4225-2 of the French Labor Code

https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000018532169&cidTexte=LEGITEXT000006072050&dateTexte=20080501

Article L. 1321-3 of the French Labor Code

https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000033975667&cidTexte=LEGITEXT000006072050&dateTexte=20170129

Cass. Soc., 6 novembre 2001, n°99-43988

https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000007044936

Frédéric CHHUM Attorney Avocat and Member of the Bar Council of Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

www.chhum-avocats.fr

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

.Paris : 4 rue Bayard 75008 Paris tel : 0142560300
.Nantes : 41, Quai de la Fosse 44000 Nantes tel : 0228442644

.Lille : 25, rue Gounod 59000 Lille tel : 0320135083

Par frederic.chhum le 06/07/19
Dernier commentaire ajouté il y a 3 mois 2 semaines

In case of dismissal following an internal investigation (enquête interne) in a company, the judge, seized of a dispute of his dismissal by an employee, can not base his decision solely or in a decisive way on anonymous testimonies.

To our knowledge, the decision of 4 July 2018 is unpublished in this area.

This judgment must be approved because it strengthens the rights of defense of employees in case of dismissal following an internal investigation

Learn more at https://www.village-justice.com/articles/licenciement-suite-une-enquete-interne-juge-can-fund-decision-only-29031.html#DdxFSD4egcfPk5FV.99

1) The facts.

Mr. X  was hired on 1 March 2007 as an expert building buyer by SNCF mobilités.

On February 4 and 5, 2013, the employee and Mrs. Z ... approached SNCF's ethics department.

Following an internal investigation, the company notified the employee on 18 September 2013 of a suspension measure and summoned him to the Disciplinary Board.

He was fired on September 25, 2013 for fault.

The employee was reproached for making racist remarks about a colleague of Muslim religion and insulting remarks about his hierarchy.

2) In the case of an internal investigation, the judge cannot base his decision solely or decisively on anonymous testimony (temoignages anonymes)

On the approval of Article 6 §1 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in its judgment of 4 July 2018, the Court of Cassation states that "the judge can not base his decision solely on or decisively on anonymous testimonies ".

Article 6 §1 of the ECHR states that:

"Everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, which shall decide either disputes over his civil rights and obligations or the merits of any criminal charge against him. The judgment must be made publicly, but access to the courtroom may be prohibited to the press and the public during all or part of the trial in the interest of morality, public order or public order. national security in a democratic society, where the interests of the juveniles or the protection of the privacy of the parties to the trial so require, or to the extent that the court deems it strictly necessary, when in special circumstances advertising would be of such a nature as to undermining the interests of justice ".

Article 6 §3 of the ECHR provides that

"Everyone charged with a criminal offense has the following rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) have adequate time and facilities for the preparation of his defense;

(c) to defend himself or to have the assistance of a defense counsel of his choice and, if he can not afford to pay a defense counsel, be able to be assisted free of charge by an ex officio justice demands it;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he can not understand or speak the language used at the hearing ".

The Court of Cassation breaks the judgment of the Court of Appeal of Rennes which considered that the procedure of dismissal is regular and the dismissal justified and after having retained that "the infringement of the rights of the defense based on the anonymous character of the testimonials collected by the Ethics Directorate is not justified to the extent that the employee had the opportunity to read and comment on them, relied decisively on the report of the management of the ethics.

The Court of Cassation breaks and annuls the judgment of the Rennes Court of Appeal of 17 March 2017 in that it dismissed the employee's claim for damages for dismissal without cause real and serious.

She refers the case to the Angers Court of Appeal.

3) Provision of the judgment of 4 July 2018.

In the event of termination of employment, if a company conducts an internal investigation, employees who testify must be identifiable.

Otherwise, the dismissal may be invalidated because the evidence may be removed from the proceedings by the judge because of their anonymity.

In any case, the judge cannot base his decision solely or decisively on anonymous testimony

This decision, which strengthens employees' rights of defense in the event of dismissal following an internal investigation, is to be welcomed.

Source: Court of Cassation

    c. cass. 4 July 2018, No. 17-18.241 (Mr. X c / establishment SNCF mobilities).
    Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols Nos. 11 and 14.

Frederic CHHUM
Avocat au barreau de Paris et membre du conseil de l’ordre de avocats de Paris
Selarl Frédéric CHHUM LAWYERS (Paris, Nantes)
e-mail: chhum@chhum-avocats.com
Website: www.chhum-avocats.com
Blog: www.chhum-avocats.fr

Learn more at https://www.village-justice.com/articles/licenciement-suite-une-enquete-interne-juge-can-fund-decision-only-29031.html#xqsFX3hYDGxumSmp.99