In a decision of December 15th, 2021 (n°19-20.978), the Court of Cassation affirms that it is up to the employer to prove that the objectives set for the employee under the variable remuneration were achievable.

Reasoning of the Court of Cassation.

In its decision of December 15th, 2021 (n°19-20.978), the social chamber rejects the employer's appeal, stating that under the terms of article 1315, now 1353, of the Civil Code, anyone who claims the execution of an obligation must prove it.

Conversely, the person who claims to be discharged must justify the payment or the fact which produced the extinction of his obligation.

Thus, the Court of Appeal, which found that the employer produced no evidence to establish that the objectives it had set for the employee for 2013 were achievable, did, without reversing the burden of proof , rightly decided that the variable compensation for this financial year was due.

Proceeding then to the interpretation, exclusive of distortion, of the employment contract, made necessary by the ambiguity of its terms, the Court of Appeal considered that the objectives had been set in appendix 1 to the employment contract, for the only year 2013, without possible renewal for the following years.

Consequently, the Court of Appeal, which found that the employer's shortcomings for several years had deprived the employee of his contractual variable remuneration, was able to deduce from this, without carrying out a search that its findings rendered ineffective, that these breaches had prevented the continuation of the employment contract.

Analysis.

It is accepted that a clause in the employment contract may provide for a variation in the employee's remuneration provided that it is based on objective elements beyond the employer's control, does not cause the business risk to bear on the employee and does not have the effect of reducing the remuneration below the legal and conventional minima (Cass. soc., 2 July 2002, n°00-13.111).

Apart from these conditions of validity, when an objective bonus is set unilaterally by the employer, the objectives conditioning the payment of such variable remuneration may be modified without the employee's agreement as long as they are achievable and they were brought to the attention of the employee at the start of the financial year [1].

Here, the question that arose was to know on whom the burden of proof of the achievable character of the objectives rests.

Using the rules of evidence of article 1315, now 1353 of the Civil Code, the social chamber places this burden on the employer. Indeed, this article provides that the person who claims the performance of an obligation must prove it and the person who claims to be released from it must justify the payment or the fact that caused the extinction of the obligation.

In this case, it is therefore up to the employer to prove that the objectives were achievable. See also our other articles.

. Remuneration or variable bonus: overview of case law 2020-2021. https://www.village-justice.com/articles/remuneration-prime-variable-panorama-jurisprudence-2020-2021,39297.html

. Employees, executives, senior executives: how to get paid their variable compensation? (Jurisprudence 2019). https://www.village-justice.com/articles/salaries-cadres-cadres-dirigeants-comment-faire-payer-remuneration-variable,31985.html

. Employees, executives, senior executives: how to obtain payment of your variable compensation or bonus? https://www.village-justice.com/articles/Salaries-cadres-cadres-dirigeants-comment-obtenir-paiement-votre-remuneration,25413.html

Sources.

Cass. Soc., December 15, 2021, n°19-20.978. https://www.courdecassation.fr/decision/61b99381ef20f6a61afc3614

Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

CHHUM AVOCATS (Paris, Nantes, Lille)

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