The Paris Court of Appeal, ruling publicly, in a contradictory judgment, as a last resort, overturned the judgment of the Conseil de Prud’hommes of January 3rd, 2018 and
- pronounces the judicial termination of the employment contract with effect from 31 August 2016;
- Condemns Silverway Media International to pay Mr. X the following sums:
- 13,268.79 euros for overtime worked in 2014, 2015 and 2016;
- 1,326.87 euros in respect of related paid holidays;
- 500 euros in damages and interest to compensate for the loss suffered as a result of the failure to provide medical examinations on recruitment and periodic medical check-ups;
- 500 euros in damages for failure to respect the right to daily rest;
- 500 euros for failure to comply with the provisions on daily working hours;
- 11,475 euros gross of compensation in lieu of notice;
- 1,147.50 euros gross in respect of related paid holidays;
- 4,590 euros gross in conventional redundancy pay;
- 15,300 euros in compensation for dismissal without real and serious cause;
- 500 euros in damages for late declaration to the pension fund.
1.1) The Court of Appeal pronounces the judicial termination of the employment contract of the Technical Manager of Silverway Media International which produces the effects of dismissal without cause.
Mr. X's main claim is that the Paris Court of Appeal should order the judicial termination of the employment contract against Silverway Media International.
The Paris Court of Appeal first of all and in a general manner state that "the judicial termination of an employment contract may produce the effects of dismissal without real and serious cause in the event of breaches by the employer of sufficient gravity and of such a nature as to prevent the continuation of the contract".
In this context, Mr. X invokes eight breaches by the employer, which the Paris Court of Appeal examines successively.
1.1.1) Unlawfulness of the flat rate agreement (forfait jours) with lack of control of working time by the employer.
Firstly, the employee invokes the unlawfulness of the flat rate agreement (forfait jours), arguing that:
- no working time control document was kept;
- there was no regular monitoring of the workload and no annual interviews either;
- the scope of the work was unreasonable, sometimes working more than 13 hours a day.
On the basis of Article 5.6.3 of the national collective bargaining agreement for technical companies working in the creative and event sectors, the Paris Court of Appeal noted, in particular, that "the flat rate agreement (forfait jours) is accompanied for each employee by a check on the number of days or half-days worked, by means of a monthly control document showing the number and date of the days worked, as well as the classification of days not worked as weekly rest, paid leave or rest day for the purpose of reducing working time. Once a year, each employee who has signed flat rate agreement (forfait jours) is entitled, at his or her request, to an interview with his or her superior during which the work organisation, the resulting workload and the length of the days are discussed. »
In this case, the Paris Court of Appeal noted that "if the employer criticises the employee's position, he provides absolutely no evidence that he applied the provisions of the collective agreement on the control of working time during the employment relationship, which lasted nearly four years".
The appeal judges deduced from these elements that "the flat rate agreement (forfait jours) is therefore deprived of effect with respect to the employee" and considered that "the employer failed to fulfil its obligations in this regard".
Thus, the judges of appeal ruled that the flat rate agreement (forfait jours) was unlawful as a result of the employer's failure to fulfill its obligation to control working time.
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Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Traduction : Giulia Marcie
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