In a judgment of May 29, 2024 (RG 23/00381), the Paris industrial tribunal reclassified a self-employed contract of Sales Director / saleswoman of CAHU as an employee employment contract.
It ruled that the termination amounted to a dismissal without cause.
The employee appealed the judgment.
I) THE FACTS
Ms. X was hired under the status of self-employed by the CAHU Company on June 18, 2022 as a Sales Director.
No service provision contract was concluded.
She initially worked 4/5 and then full-time from August 23, 2022.
On October 11, 2022, the collaboration was terminated by CAHU.
II) CLAIMS AND GROUNDS
In support of her claims, Ms. X disputes the commercial nature of her employment relationship with CAHU.
She argues that she was bound by an employment contract because her work did not involve a specific, one-off task requiring specific know-how, that she performed a work service under a permanent relationship of subordination and that her overall, fixed-rate remuneration was imposed on her by CAHU and was not linked to the performance of a specific task.
She specifies that since CAHU is a leather goods industry, its employment relationship falls within the scope of the collective agreement for the leather goods, travel goods, saddlery, leather strap industries and that its provisions, particularly in terms of status and compensatory indemnity for notice, must apply.
She adds that since her employment relationship is linked by an employment contract, the provisions of the Labor Code regarding paid leave and termination of the contract must apply. She specifies that, as a result, CAHU concealed its employment as an employee.
For its part, CAHU disputes the grievances against it.
It argues, in limine litis, that the relationship between Mrs. X and CAHU was a commercial relationship and raises the incompetence of the Industrial Tribunal.
Primarily, it disputes the presence of an employment contract linking Mrs. X to the CAHU Company and specifies that there was no relationship of subordination between the parties.
1. In limine litis - On the incompetence of the Industrial Tribunal
The Industrial Tribunal joins the incidence to the merits.
2. On the recognition of the status of employee of Mrs. X
Three elements characterize the employment contract: the provision of work; the payment of remuneration; the existence of a relationship of subordination. The combination of the first two elements may not be sufficient because it can be the subject of other contracts such as a subcontracting contract.
The concept of subordination is characterized by the performance of work under the authority of an employer who has the power to give orders and directives, to monitor their execution and to sanction the breaches of his subordinate.
A subcontracting situation has several essential characteristics such as: autonomy and independence; a defined and specific service formalized by one or more agreements; the provision of the subcontractors' own material and human resources; generally a fixed remuneration; an official intervention declared to the project owner.
In this respect, Article L8222-6-1 of the Labor Code states that "a self-employed worker is one whose working conditions are defined exclusively by himself or by the contract defining them with his client." Article L 8221-6 of the French Labor Code stipulates that "I.- The following are presumed not to be linked to the principal by an employment contract in the performance of the activity giving rise to registration or entry: 1° Natural persons registered in the trade and companies register, the trades register, the register of commercial agents or with the unions for the collection of social security and family allowance contributions for the collection of family allowance contributions; 2° Natural persons registered in the register of road passenger transport companies, who carry out a school transport activity provided for in Article L. 214-18 of the Education Code or transport on demand in accordance with Article 29 of Law No. 82-1153 of December 30, 1982 on the orientation of internal transport; 3° The managers of legal persons registered in the trade and companies register and their employees; II- The existence of an employment contract may however be established when the persons mentioned in I provide services directly or through an intermediary to a principal under conditions which place them in a relationship of permanent legal subordination with respect to the latter. In this case, concealment of salaried employment is established if the principal has intentionally evaded by this means the fulfilment of the obligations incumbent on the employer mentioned in Article L. 8221-5. The principal who has been the subject of a criminal conviction for concealed work under this Article is required to pay the social security contributions and contributions payable by employers, calculated on the amounts paid to the persons mentioned in I for the period for which the concealment of salaried employment was established".
In this case, it is clear from the documents submitted to the debate that the employment of Mrs. X was not for the purpose of carrying out a specific and one-off task and did not require technical know-how that the company was not able to assume internally.
Furthermore, on the notion of subordination, the numerous exchanges between Mrs. X and Mrs. Y, submitted to the debate, reveal constrained hours as well as precise and detailed instructions on the organization of her work. These elements reveal Mrs. X's lack of autonomy.
Consequently, the Industrial Tribunal finds that there was indeed an employment relationship between Mrs. X and SARL CAHU, considers itself competent and reclassifies her employment relationship as a permanent contract
3. On the application of the National Collective Agreement for the Leather Goods, Travel Goods, Saddlery, Leather Straps Industry
The National Collective Agreement for the Leather Goods, Travel Goods, Saddlery, Leather Straps Industry was extended on June 12, 2006.
SARL CAHU is a leather goods industry.
Consequently, it falls within the scope of this agreement and must apply to all of its staff
4. On the status of Mrs. X
Mrs. X's main tasks were:
- Opening and closing the store;
- Welcoming and selling to customers;
Keeping the store in good condition;
- Reporting of the store's turnover and performance analysis;
Responsibility for B to B stock
Monitoring of after-sales service and B to B and B to C customers:
- Management of interventions outside the store (cleaning, maintenance, etc.);
Cash register and quantified accounting feedback;
- Store equipment (cash register, flowers, etc.).
The Industrial Tribunal considers that this is similar to the classification criteria for Level II employees of the National Collective Agreement for the leather goods, travel goods, saddlery, leather straps industries, namely: Performance of qualified work with limited autonomy and taking initiatives in the execution in terms of responsibility.
Consequently, it considers that Mrs. X belonged to the category of Level II employees of the National Collective Agreement for the leather goods, travel goods, saddlery, leather straps industries. 5. On the salary
It is not paid in the debates to justify the calculation of the salary.
Consequently, the Industrial Tribunal has taken the average of the last 4 invoices paid in the debates and sets the monthly salary at €2,875.
6. On the compensatory indemnity for paid leave
Since Mrs. X's employment relationship has been reclassified as an employment contract of indefinite duration, Article L3141-3 of the Labor Code, which stipulates that "The employee is entitled to two and a half working days' leave per month of actual work for the same employer. The total duration of the leave payable may not exceed thirty working days." applies.
Consequently, the Industrial Tribunal orders SARL CAHU to pay €1,150 as compensatory indemnity for paid leave.
7. On the termination of the employment relationship producing the effects of a dismissal without real and serious cause
Since Mrs. X's employment relationship was reclassified as an open-ended employment contract, the termination of her employment contract is analyzed as a dismissal without real and serious cause.
On the date of termination, Mrs. X had worked 4 months and did not have 1 year of seniority.
Consequently, the Industrial Tribunal ordered SARL CAHU to pay €718.75 as compensatory notice pay and €71.87 in related paid leave.
Furthermore, Article L1235-3 of the French Labor Code stipulates that "If the dismissal of an employee occurs for a reason that is not real and serious, the judge may propose the reinstatement of the employee in the company, while maintaining his acquired benefits. If one or other of the parties refuses this reinstatement, the judge grants the employee compensation at the employer's expense, the amount of which is between the minimum and maximum amounts set out" in the table provided by the Labor Code. It also states that "In the event of dismissal carried out in a company usually employing fewer than eleven employees, the minimum amounts set out "in the table provided" are applicable, by way of derogation from those set out in the preceding paragraph." Finally, it states "To determine the amount of the compensation, the judge may take into account, where applicable, the severance pay paid on the occasion of the termination, with the exception of the severance pay mentioned in Article L. 1234-9. This compensation may be combined, where applicable, with the compensation provided for in Articles L. 1235-12, L. 1235-13 and L. 1235-15, within the limit of the maximum amounts provided for in this article".
On the date of the termination, Mrs. X had worked 4 months.
Consequently, the Industrial Tribunal sets the severance pay without real and serious cause at 1 month and orders SARL CAHU to pay €2,875.
8. On the claim for damages for abrupt and vexatious dismissal
Article L1231-2 of the Code of Civil Procedure stipulates that "the damages owed to the creditor are, in general, the loss he has suffered and the gain of which he has been deprived, except for the exceptions and modifications below".
In this case, Mrs. X does not provide proof of her loss.
Consequently, the Industrial Tribunal does not follow up on this request
9. On the request for concealed work
Article L8223-5 provides that "concealed work by concealment of salaried employment is deemed to be the act for any employer: 1° Either intentionally evading the completion of the formality provided for in Article L. 1221-10, relating to the prior declaration of hiring; 2° Either intentionally evading the issuance of a pay slip or an equivalent document defined by regulation, or mentioning on the pay slip or equivalent document a number of hours worked lower than the number actually worked, if this mention does not result from a convention or collective agreement on the organization of working time concluded in application of Title II of Book 1 of Part III; 3° Or intentionally evading declarations relating to salaries or social contributions based on them to collection agencies contributions and social security contributions or the tax administration under the legal provisions".
In this case, Mrs. X does not provide proof that SARL CAHU intentionally evaded its obligations.
Consequently, the Industrial Tribunal does not follow up on this request.
10. On the fraud affecting Mrs. X's employment contract
Article 1130 of the Code of Civil Procedure stipulates that "error, fraud and violence vitiate consent when they are of such a nature that, without them, one of the parties would not have contracted or would have contracted under substantially different conditions. Their determining nature is assessed with regard to the persons and circumstances in which consent was given".
In this case, SARL CAHU does not provide proof of fraud.
Consequently, the Industrial Tribunal does not follow up on this request.
11. On the ancillary requests
Furthermore, the Industrial Tribunal orders the delivery of Mrs. X's pay slips from June to October 2022 and the end-of-contract documents in accordance with the decision.
In view of the conditions of the resources of each of the parties, it would be unfair to leave the irrecoverable costs that she has incurred as a result of these proceedings to the sole responsibility of Mrs. X.
Consequently, the Industrial Tribunal orders SARL CAHU to pay €1,000 under Article 700 of the Code of Civil Procedure.
The Tribunal considers the specific provisions set out in Article R1454-28 of the Labor Code to be sufficient for the present case. Consequently, it does not follow up on Article 515 of the Code of Civil Procedure.
Since SARL CAHU is unsuccessful in the proceedings, it is ordered to pay the costs.
For a fuller statement of the parties' arguments and claims, the Tribunal, in accordance with Article 455 of the Code of Civil Procedure, refers to the conclusions filed and supported at the hearing as well as to the oral claims as recalled above.
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
.Paris: 34 rue Petrelle 75009 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: : 45, Rue Saint Etienne 59000 Lille – Ligne directe +(33) 03.20.57.53.24
