Edimark is ordered to pay the production designer damages for union discrimination.
The designer's acknowledgment results in a void dismissal.
The company is also ordered to pay the employee overtime.
The designer's other claims are dismissed.
1) STATEMENT OF THE DISPUTE
After working as a freelance graphic designer, Ms. X was hired by Edimark, a publisher of scientific publications, under a permanent employment contract effective April 3, 2018, as a production designer at level X, the second level of the collective bargaining agreement for the specialized information press. Having obtained a salary increase in October 2018, she applied by letter dated January 8, 2019, for recognition of her qualification as a graphic designer.
The Professional Journalists' Identity Card Commission granted her her first professional journalist card on March 25, 2019.
Ms. X filed an application with the Paris Industrial Tribunal (Conseil de Prud'hommes) on November 27, 2019, seeking disclosure of comparative documents held by her employer. The order of February 26, 2020, declared that there was no basis for interim relief for either the main claim or the counterclaim and ordered the plaintiff to bear the costs.
Upon appeal by the employee, the Paris Court of Appeal, by judgment of January 14, 2021, granted her request for disclosure of the staff entry and exit log for the years 2017 to 2019, the employment contracts and amendments, and the pay slips for the years 2017 to 2019 of eight employees (Mr. M., M., B., P., and Ms. D., B., A., and M.), as well as the pay slips of one of her colleagues, Ms. Langlais, from April 2018 to December 2018, on the condition that they be anonymized beforehand.
From November 25, 2019, to April 9, 2020, Ms. X's employment contract was suspended due to illness. She filed a substantive case with the Paris Industrial Tribunal on December 27, 2019.
She acknowledged the termination of her employment contract by letter dated March 6, 2020.
The Paris Labor Court, by judgment of August 24, 2023,:
- declared that it had jurisdiction over all the claims constituting the dispute,
- dismissed the documents submitted by Ms. X numbered 22, 57, and 65,
- declared the application for judicial termination of Ms. X's employment contract moot,
- declared the applications filed based on the acknowledgement of the termination of the employment contract admissible,
- declared that Ms. X worked unpaid overtime between June 28, 2018, and November 22, 2019,
- declared that the acknowledgement of the termination constituted a resignation,
- ordered Edimark to pay Ms. X the following amounts:
- €2,224.43 for overtime,
- €222.44 for related paid leave,
- €1,200 under Article 100. 700 of the Code of Civil Procedure,
- held that wage-related awards will bear interest at the statutory rate from
the employer's receipt of the summons to the conciliation office,
- ordered the issuance of the amended pay slip and a corrected Pôle Emploi certificate,
- ordered provisional enforcement,
- dismissed Ms. X's remaining claims,
- dismissed Edimark's claims,
- ordered Edimark to pay costs. Ms. X appealed the judgment on October 2, 2023.
2) MOTIVATION FOR THE JUDGMENT
The Paris Court of Appeal, after deliberation,
REJECTS from the hearing Exhibits Nos. 22, 57, and 65 of Ms. X's case, as well as their reference in the latter's submissions in the present proceedings,
UPHOLDS the judgment under appeal, except for its provisions relating to union discrimination, the effects of the formal acknowledgment, and severance pay, which are overturned,
Ruling again on the overturned grounds and adding thereto,
STATES that Ms. Véronique X's formal acknowledgment of the termination of her employment contract had the effect of a null and void dismissal,
ORDERS Edimark to pay Ms. X the following amounts:
- €2,000 in damages for union discrimination,
- €5,200 as compensatory compensation for notice period,
- €520 in related paid leave,
- €3,900 in severance pay,
- €16,000 in damages for void dismissal,
- €3,000 on the basis of Article 700 of the Code of Civil Procedure,
STAYS that interest at the statutory rate is due from the date of acknowledgment of receipt of the employer's summons before the adjudication office of the industrial tribunal for monetary claims, the principle and amount of which result from the contract or the law, and from the date of this judgment for the remainder,
ORDERS that Edimark provide Ms. X with a certificate intended for France Travail, a work certificate, and a summary pay slip in accordance with the terms of this judgment, no later than two months following its delivery,
ORDERS that Edimark reimburse the relevant social security organizations for any unemployment benefits paid. to Mrs. X up to a limit of six months of compensation,2.10) Sur la prise d’acte de la rupture du contrat de travail :
Ms. X acknowledged the termination of her employment contract by letter dated March 6, 2020, containing the following grievances:
[...] “I note that the serious breaches in the performance of my employment contract by the company continue.
These breaches are as follows:
- The company refuses to recognize my status as an employee for the period from January to March 2018 [...]
- The company refuses to recognize my qualification as a Graphic Designer and therefore
my journalist status [...]
- I am therefore the victim of unequal treatment since I receive lower pay than colleagues who are qualified as Graphic Designers [...]
- I am currently on sick leave due to a situation of moral harassment due to a harmful, toxic work environment and unjustified and denigrating criticism;
- Finally, I have been subjected to union discrimination since you learned of my intention to run for office within the company. and that I was about to declare myself a candidate, you immediately offered to terminate my employment contract;
Furthermore, although I am employed for a 35-hour week, you still haven't paid me for the overtime I worked.
Furthermore, I was shocked to learn in February 2020 that you had posted a permanent job offer corresponding to my position while I was on sick leave.
Furthermore, I learned that during my absence, I was replaced in my position by an employee on a fixed-term contract with the qualification of Graphic Designer.
Finally, you informed me on March 2, 2020, that the social security system was suspending my sick leave compensation. You then claimed that this was because I had not sent them my medical certificate, which was completely false, since I sent it by registered letter on January 6, 2020.
Therefore, the suspension of my social security compensation cannot result than your own breaches.
Under these circumstances, I inform you that I have no choice but to acknowledge the termination of my employment contract due to the serious misconduct you committed in the performance of my employment contract."
Acknowledgment of termination allows the employee to terminate the employment contract in the event of a sufficiently serious breach by the employer to prevent the continuation of the employment contract.
If the employee acknowledges the termination of the employment contract, this termination results either in a dismissal without real and serious cause, if the facts invoked justified it, or, otherwise, in a resignation.
Ms. X, according to the foregoing developments relating to the alleged breaches, suffered non-payment of overtime, related paid leave, and union discrimination, facts serious enough to justify the acknowledgement of the termination having the effects of a null and void dismissal.
Taking into account the employee’s age (born in 1974) at the time of the termination, her seniority (dating back to 3 April 2018), her average gross monthly salary (i.e. €2,600), and the lack of justification for her professional situation after the termination, she should be awarded €16,000 in damages for null and void dismissal, as well as €5,200 in compensatory notice pay, €520 in related paid leave and €3,900 in severance pay, in accordance with the amounts claimed in the alternative and not strictly contested.
2.11) On interest:
In accordance with the provisions of Articles 1231-6 and 1231-7 of the Civil Code and R.1452-5 of the Labor Code, interest at the statutory rate accrues on claims for sums of money whose principle and amount result from the contract or the law (back pay, compensatory indemnities for notice and paid leave on notice, severance pay) from the date of acknowledgment of receipt of the employer's summons before the adjudication office of the labor court, and on other sums from the date of this judgment.
2.12) On the submission of documents:
The submission of a certificate intended for France Travail, an employment certificate, and a revised pay slip in accordance with the terms of this judgment is required without there being any need to impose a penalty payment, as no evidence suggesting resistance from Edimark has been submitted to the court.
2.13) Regarding the reimbursement of unemployment benefits:
The provisions of Article L.1235-4 of the French Labor Code allow, in this case, since Ms. X's dismissal was void, to order the reimbursement by Edimark of the unemployment benefits received by the person concerned, up to a maximum of six months' benefits.
To read the full brief, click on the link below.
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
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