In this decision of the Court of Appeal of Versailles (6th chamber) of February 3, 2022, the Court of Appeal rules that the employee Director is not a senior executive (cadre dirigeant) within the meaning of Article L. 3111-2 of the Code of work.
It grants 40,994 euros to the Director for overtime reminders as well as the related paid leave.
The Versailles Court of Appeal dismissed the Director's action and her claim for damages for moral harassment.
The employee challenged the decision before the Court of Cassation.
1) Reminder of the facts and the procedure
SASU Compagnie IBM France, whose head office is located in Bois-Colombes in Hauts-de-Seine in the Île-de-France region, specializes in consulting in computer systems and software.
It employs approximately 7,000 people and applies the collective agreement for engineers and metallurgy managers of March 13, 1972.
Ms X was hired on July 1, 1994, initially by IBM Eurocoordination, first under a fixed-term employment contract, then under a permanent contract in December 1994.
As of July 1, 2008, his employment contract was transferred to IBM France as part of a sale of goodwill.
Ms. X seized the Nanterre industrial tribunal with a request for judicial termination of her employment contract at the expense of IBM France by request received at the registry on September 20, 2017.
During the appeal procedure, Ms. X took note of the termination of her employment contract on May 14, 2019.
By contradictory judgment rendered on April 12, 2019, the management section of the Nanterre industrial tribunal dismissed Ms. X of all of her claims. (…)
Mrs. X appealed against the judgment by declaration of May 10, 2019 registered under the procedure number 19/02159. (…)
2) Decision of the Court of Appeal of Versailles (6th chamber) of February 3rd, 2022
By judgment of February 3, 2022, the Versailles Court of Appeal:
. confirms the judgment rendered by the industrial tribunal of Nanterre on April 12, 2019, except in that it was upheld the merits of the application of the status of senior executive, in that Mrs. X was dismissed from her claim for overtime and that she was ordered to pay the costs,
Ruling again and adding to it,
. said that Mrs X did not have the status of a senior executive,
. orders SAS Compagnie IBM France to pay Mrs. X the sum of 40,994.80 euros for overtime due between September 2014 and June 2017, in addition to a sum of 4,099.48 euros for related paid leave,
. dismisses Mrs. X's request to have her formal notice of May 14, 2019 produced the effects of a dismissal without real and serious cause,
2) On the termination of the employment contract
Ms. X notified IBM France of the termination of her employment contract as part of a voluntary retirement by letter dated May 14, 2019 in the following terms:
“I follow up on my letter of April 30, 2019, formal notice to cease the wrongful acts of which I am the object and to which you have not replied.
In this respect, I inform you of my forced decision to assert my pension rights, since the irregularities affecting my employment contract and my working conditions have caused the deterioration of my state of health and make it impossible for me to remain at the breast. of the company.
If it results from circumstances prior to or contemporaneous with the departure of the employee, that on the date on which this departure was decided, it was ambiguous, it will be analyzed in a formal note of the rupture which produces the effects of dismissal without real and serious cause if the facts invoked justified it or, in the opposite case, voluntary retirement.
Moreover, the taking note of the termination by an employee because of facts that he blames on the employer leads to the immediate termination of the employment contract so that there is no longer any need to rule on the request. of judicial termination introduced previously.
In this case, it follows from the terms of the termination letter that Ms. X calls into question her retirement because of acts or shortcomings that she attributes to her employer.
Under these conditions, it is appropriate to examine the shortcomings invoked by the employee in support of her request for requalification of her taking of action.
2.1) On the breaches invoked by the employee
As part of a new organization set up within IBM France in 2017, the position of Ms. X was abolished, she having then been named "Project Manager Marketplace".
In 2018, Ms. X was named “Partner Enablement Leader, Offerings IBM Partner Ecosystem Europe”.
The employment contract was terminated in May 2019.
2.2) On the status of senior executive
Ms. X claims that her employer unlawfully applied the status of senior executive to her.
She claims that her remuneration was not at the highest levels of IBM's remuneration systems, being paid nearly 400,000 euros less than the ten highest paid employees, since she has not benefited from 2012 of IBM's variable compensation system belonging to the "executive" category, the employer having failed to provide proof that she was one of the best paid employees.
She then claims that she was not empowered to take decisions in a largely autonomous way, since her budget was removed in 2012, that she was unable to incur expenses without the authorization prior request from her manager, that she had to obtain the agreement of her superior for any move, that her position on step band 10 of the internal job classification demonstrates that she did not have the autonomy of a manager leader and that she no longer held the rank of director or leader as of May 2017.
She still claims that she never actually participated in the management and strategy of IBM France and did not participate in governance bodies, so she was never part of the management committee, nor of the team. "Digital Sales Leadership" and she did not participate in the governing bodies within her scope.
Finally, she emphasizes that her employer fails to provide proof of the legality of the status of senior executive which was applied to her, both in terms of the remuneration criterion and the criteria of autonomy and classification.
Compagnie IBM France, on the other hand, maintains that Ms. X met the conditions for obtaining the status of senior executive.
She argues that the employee benefited from the highest classification in the collective agreement for metallurgy as well as a high internal rank within IBM, which gave her considerable autonomy and made her independent in the management of her timetable.
It further maintains that Mrs. X was one of the 3% of IBM employees benefiting from the highest RTR (theoretical reference salary), not important in this respect that she does not benefit from stock options and AIP bonuses.
Finally, it maintains that Ms. X was involved in strategic decisions and was part of the company's senior management.
On this, Article L. 3111-2 of the Labor Code provides: "Senior executives are considered to be executives who are entrusted with responsibilities whose importance implies great independence in the organization of their employment of the time, who are empowered to take decisions in a largely autonomous way and who receive remuneration at the highest levels of the remuneration systems practiced in their company or establishment”.
Executives who meet the following cumulative conditions are thus exempt from part of the regulations on working hours:
- being entrusted with responsibilities whose importance implies a great independence in the organization of their schedule,
- be empowered to take decisions in a largely autonomous way,
- receive remuneration at the highest levels of the company, these cumulative criteria implying that only executives involved in the management of the company fall into this category.
Compagnie IBM France relies on the company agreement on the reduction of working hours signed between IBM and its social partners, which resumes in article 5.2, the definition of "senior executive" in these terms: "Are considered to have the status of senior executive, executives who are entrusted with responsibilities the importance of which implies a great deal of independence in the organization of their timetable, who are empowered to take decisions in a largely autonomous manner and who receive remuneration who are in the highest levels of the remuneration systems practiced in their company or establishment. »
This agreement specifies: “Executives with a metallurgical coefficient greater than or equal to IIIC are considered, unless they refuse, as senior executives. This population concerns in particular members of the management committee or executives in a position to exercise the prerogatives of the employer by direct delegation. Senior executives will be registered by the Company on the electoral rolls of the employer college for the next industrial tribunal elections. The Company reserves the right to offer executives with a lower coefficient, but falling within the definition referred to in the first paragraph, the attribution of the quality of senior executive. In this case, the interpretation monitoring committee will be informed. (Exhibit 1 from the employer).
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Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
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