In the absence of waiver by the employer of a non-competition clause, payment of the consideration is due.
The same applies when the waiver occurs beyond the time limits provided contractually or conventionally.
This is what the customer service representative of this start-up argued.
1) Facts and procedure
The Paytop company is a French start-up created in 2012 and specialized in services
related to international online payment. It employs more than 10 employees and applies the
collective agreement known as SYNTEC.
Ms. In this capacity, she received a fixed remuneration of 2,333.33 euros gross per month, to which was added an annual variable remuneration of 2,000 euros gross.
By hand-delivered letter on October 5, 2018, Ms.
By email of October 19, 2018, his supervisor partially granted his request by reducing his notice to one month and ten days. She was then told that she would be released from her duties as of the evening of November 16, 2018.
By letter dated December 19, 2018, the Paytop company replied that the waiver of the non-competition clause had been made on November 5, 2018, i.e. before the end of the notice period agreed between the parties and set for November 16, 2018. She therefore refused to modify the balance of any of Ms.
Considering that the non-competition clause had been lifted late and that payment of the related financial compensation was due to her, Ms.
By contradictory judgment of June 5, 2020, the Paris industrial tribunal:
- dismissed Ms.
- dismissed SAS Paytop's counterclaim and its request made under article 700 of the code of civil procedure.
The council considered that the waiver of the non-competition clause by the employer had indeed occurred within the contractual deadline which ended on November 16, 2018.
By declaration notified by the RPVA on July 10, 2020, Ms.
2) Decision of December 21st, 2023 of the Paris Court of Appeal
In its judgment of December 21, 2023, the Paris Court of Appeal, ruling publicly, by contradictory judgment:
. INVALIDATE the judgment undertaken;
Ruling again and adding:
. orders the company Paytop to pay Ms.
- 19,447.66 euros gross as financial compensation for the non-competition clause
for the period from November 17, 2018 to November 16, 2019;
- 1,944.77 euros gross for related paid leave;
. says that the legal interests run from the summons of the company before the
conciliation office;
. orders Ms.
as compensation in lieu of notice, with interest at the legal rate from the date of
date of judgment and capitalization of interest due for an entire year;
. orders compensation between the sums owed by the parties;
. orders the Paytop company to provide Ms.
complies with the decision within one month of its notification;
. says there is no need for application of the provisions of article 700 of the code of procedure
civil;
. orders the company Paytop to pay the costs.
2.1) On the lifting of the non-competition clause
In the absence of waiver by the employer of a non-competition clause, payment of the consideration is due. The same applies when the waiver occurs beyond the time limits provided contractually or conventionally.
The employment contract binding the parties provides for a non-competition clause of twelve months from the termination of said contract and the possibility for the employer to waive it, this waiver having to take place: "during the fifteen days following notification of the termination of this contract to the employee or by the employee and in any event no later than the date of the employee's effective departure from the company.
The parties disagree on the interpretation of this clause, the employee maintaining that her employer had until October 20, 2018 to release herself and the company arguing on the contrary that she had a period until the end of the notice, date of effective departure of the employee.
It appears from the wording of this clause, which is clear and precise and which does not give rise to interpretation, that the employer had a period of 15 days from the employee's notification of her resignation to waive the right. non-competition obligation and that, if the employee's actual departure was within this period (case of exemption from giving notice or reduction of notice to less than fifteen days), the company had to renounce at the latest on the date of this effective departure.
The 15-day period was thus accompanied by an intangible limit, namely the date of the employee's effective departure from the company before its expiry.
In the present case, Ms. -competition began and expired on October 20, 2018, since on that date the employee was still present within it.
Thus, contrary to what is argued by the respondent, the said clause did not give her the possibility of waiver until the scheduled end date of the notice period of November 16, 2018 or until the date of the employee's actual departure since that -this occurred after the expiration of the 15-day period.
The company having only lifted the non-competition clause on November 5, 2018, this waiver was made beyond the allotted deadline and therefore Ms. producing no evidence to establish that her former employee did not respect the non-competition clause to which she was subject.
Furthermore, the company's developments on the bad faith of the employee and her abandonment of position during the notice period are ineffective in relieving her from her own obligation to pay the financial compensation of the non-competition clause, being noted moreover. that the effective departure of the employee during the period of notice is in any case subsequent to the expiration of the 15-day period.
Under the terms of article 10 of the employment contract, the non-competition compensation corresponds to “two-thirds (2/3) of one (1) year of gross remuneration including fixed salary, variable part and bonuses and benefits in kind, calculated on the basis of the last twelve preceding the termination of the employment contract (including paid vacation compensation). From the end of this contract, the Company will pay the financial compensation to the Employee each month and for the entire duration of the non-competition commitment.
Ms. paid leave) of 29,171.49 euros gross and that the financial compensation relating to the non-competition clause corresponds to 2/3 of this sum, she must receive 19,447.66 euros gross in this respect.
Finally, since the financial compensation for the non-competition obligation is in the nature of salary compensation, it gives rise to the right to paid leave.
The judgment will therefore be reversed in that it rejected this request and the company is ordered to pay the appellant this sum as financial compensation for the non-competition clause for the period from November 17, 2018 to November 16 2019, in addition to the sum of 1,944.77 euros gross for related paid leave.
2.2) On the company's counterclaim
The company rightly argues that the employee having left her position before the end of the notice period set by mutual agreement on November 16, 2018, she is liable for compensation, which is not significant, contrary to what she maintains, absence of proof of harm.
The request for payment of the sum of 1,060.60 euros will therefore be granted as compensation for notice.
The court orders compensation between the sums owed by the parties.
On ancillary requests
The company will bear the costs of first instance and appeal.
On the other hand, it is not unfair to leave each party responsible for its irrecoverable costs.
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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