In an opinion of June 14th, 2022 (n° 22-70.004), the Court of Cassation affirms, , that the parties to the employment contract have the possibility of seizing the Labor Court directly in the presence of a clause of the employment contract work which establishes a preliminary mediation procedure (https://www.courdecassation.fr/decision/62a82456bb0a8105e5518a06#:~:text=%C2%AB%20La%20convention%20instituant%20un%20pr%C3%A9liminaire,ait%20%C3%A9t%C3%A9%20mise%20en%20oeuvre%20%3F%20%C2%BB&text=2) .
The context of the annotated opinion (1) makes it possible to understand its content (2) before considering the possible practical lessons that could be induced in the particular case of salaried clerks of commercial courts (3).
The opinion of the Court of Cassation of June 14th, 2022 (n° 22-70.004) must be quickly placed in the context of the latest legislative (1.1) and jurisprudential (1.2) developments concerning the industrial tribunal procedure.
1.1) Prerequisite for conciliation
The particularity of the industrial tribunal procedure lies in particular in the fact that, unless otherwise waived, the court hearing is preceded by a conciliation hearing before the conciliation and guidance office (BCO).
The conciliation and guidance office is responsible for reconciling the parties.
This prerequisite is mandatory pursuant to Article L. 1411-1 of the Labor Code according to which:
“The industrial tribunal settles by way of conciliation any disputes that may arise in connection with any employment contract subject to the provisions of this code between employers, or their representatives, and the employees they employ.
He judges the disputes when the conciliation has not succeeded. »
But in certain cases provided for by law, the parties can proceed to a direct referral to the judgment office of the Labor Court.
Direct referral to the Labor Court is understood as being that which excludes any attempt at conciliation of the parties before the conciliation and orientation office. The dispute is submitted directly to the advisers making up the judgment office.
This "accelerated" procedure is possible in the event of acknowledgment of the termination of the employment contract (C. trav., art. L. 1451-1), a request for requalification from CDD to CDI (C. trav. ., art. L. 1245-2); a request for reclassification of the mission contract as a permanent contract (C. trav., art. L. 1251-41).
1.2) Confirmation of case law
In a judgment of December 5th, 2012, the Court of Cassation ruled on the question of the procedural impact of a conciliation clause inserted in an employment contract. (Cass. soc., Dec. 5, 2012, No. 11-20.004: https://www.legifrance.gouv.fr/juri/id/JURITEXT000026743296?isSuggest=true)
In this case, the said clause stipulated that “in the event of disagreement on the interpretation, execution or termination [of the said] contract, the parties undertake, prior to litigation, to submit their dispute to two conciliators (… )”.
After noting the termination of his employment contract, the employee seized the Labor Court without respecting the terms of this clause.
The Court of Appeal considered that the employee's claims were inadmissible on the grounds that the disputed clause was lawful.
Nevertheless, in the judgment of December 5, 2012, the Court of Cassation quashed and annulled the appeal judgment in the following terms:
“Whereas, however, that due to the existence in industrial tribunal matters of a preliminary and compulsory conciliation procedure, a clause of the employment contract which institutes a preliminary conciliation procedure in the event of a dispute arising on the occasion of this contract does not prevent the parties from taking their dispute directly to the industrial tribunal judge; (Cass. soc., Dec. 5, 2012, No. 11-20.004: https://www.legifrance.gouv.fr/juri/id/JURITEXT000026743296?isSuggest=true)
In other words, and contrary to common law, the existence of a preliminary stage of conciliation before the industrial tribunal authorizes the parties to submit their dispute to the labor court without respecting the contractual conciliation clause.
2) Opinion of the social chamber of the Court of Cassation of June 14, 2022 (n° 22-70.004)
By this opinion of June 14th, 2022, the Court of Cassation recalls and maintains its position adopted in 2012 while applying it, this time, to mediation clauses.
In this case, the Colmar Court of Appeal questioned the social chamber of the Court of Cassation on the procedural impact of the mediation/conciliation clauses in the following terms:
"Is the agreement instituting a compulsory preliminary mediation binding on the trial judge when the parties invoke it and must it therefore result in the inadmissibility of a request made without the mediation procedure having been implemented? »
Without directly answering the question put to it, the Social Chamber repeats almost identically the expected principle of the 2012 judgment by replacing the term “conciliation” with that of “mediation”:
"Because of the existence in employment tribunal matters of a preliminary and compulsory conciliation procedure, a clause of the employment contract which institutes a procedure of preliminary mediation in the event of a dispute arising on the occasion of this contract does not prevent not the parties to refer their dispute directly to the industrial tribunal judge”.
3) What about the procedure for salaried clerks of the commercial courts of article R. 743-139-12 of the commercial code
What is the scope of this opinion concerning the specific provisions applicable to salaried clerks of commercial courts pursuant to Article R. 743-139-12 of the Commercial Code.
Article R. 743-139-12 of the Commercial Code provides for the obligation to refer to the President of the National Council of Commercial Court Clerks as mediator of any dispute arising from the execution of the contract of work.
Is this mediation procedure combined with that of conciliation before the conciliation office of the Labor Court?
The scope of the opinion of June 14, 2022 cannot therefore, in our opinion, be extended to salaried clerks of the Commercial Court for whom an independent mediation procedure has been created.
Without legal and jurisprudential clarification on this point, the question could however be the subject of a new request for an opinion, the issue being the reduction of procedural delays while respecting the employee's right to take legal action.
Cass. soc., opinion, June 14th, 2022, no. 22-70.004, FS-B: FS-B ). https://www.courdecassation.fr/decision/62a82456bb0a8105e5518a06
Cass. soc., 5 dec. 2012, n°11-20.004, Bull. 2012, V, no. 326: D. 2012. 2969; Dr. soc., 2013, p. 178, note D. BOULMIER; RDT, 2103, p. 124, E. SERVERIN; (https://www.legifrance.gouv.fr/juri/id/JURITEXT000026743296?isSuggest=true)
Court of Cassation, Monthly Labor Law, No. 38, Dec. 2012, p. 31-32: https://www.courdecassation.fr/files/files/Publications/Bulletin%20d%27information%20du%20droit%20du%20travail/2012/bulletin_travail_12-2012.pdf)
J. ICARD, “The judge and the conventional methods of settling labor disputes”, Dr. soc., 2017, p. 33.
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
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