Inappropriate, rude and sexist remarks by Mr. Z towards Mrs. Y which she denounced in a first letter sent to the employer on October 4, 2018 when challenging his warning and then a second sent aimed at remarks with a more sexual connotation in February 2019 “Was it hot this weekend? What's new sexually? Nail polish I'm sure is sexual. Are you okay, do you want a hug? Hi Miss G point are you wearing a thong today? ".
The testimony of another employee, Mrs. W, who reports having witnessed inappropriate and sexual remarks by Mr. Z towards Mrs. Y "you don't make people want to wear this hat" or "why are you sulking in my arms” or that he generally makes inappropriate remarks towards women using the women’s toilets without embarrassment or having asked him after a business meeting “if she had slept”.
Sexist or even sexual remarks corroborated by a certificate from an employee in dispute with the company constitute sexual and moral harassment.
The employee obtains 5,000 euros in damages for sexual and moral harassment, the cancellation of a warning and the judicial termination of her employment contract with all the severance pay for null dismissal (notice, indemnity for null dismissal).
This is what the Paris Court of Appeal (Pole 6 Chamber 11) has just ruled in a judgment of September 6, 2022.
The company appealed to the Court of Cassation.
1) Facts and procedure
Mrs. Y was hired by SA Indep'AM, under an employment contract of indefinite duration as of August 21, 2006 as an executive assistant for a daily fee.
The contractual relations between the parties were subject to the national collective agreement for financial companies.
On May 31, 2013, Ms. Y benefited until September 2, 2013 from parental leave, after which she resumed her part-time work, i.e. 28 hours per week, until May 31, 2016.
On June 1, 2016, Ms. Y resumed full-time work, i.e. 35 hours per week, and as of February 1, 2017, she increased to 39 hours per week as part of a weekly hour package.
On September 10, 2018, a warning was served on Ms. Y for contractual breach of her duty of loyalty and reserve towards her employer, which she will contest.
On October 5, 2018, Ms. Y seized the Paris Labor Court for the first time with a request for judicial termination of her employment contract.
Mrs. Y was placed on sick leave from October 3 to December 16, 2018. On December 19, 2018, during her recovery visit, the occupational physician noted that the employee's state of health was not compatible with the resumed her position and then on January 2, 2019 her permanent incapacity for the position of executive assistant.
By letter dated January 8, 2019, Ms. Y was summoned to a preliminary interview scheduled for January 21, 2019 and dismissed for incapacity with the impossibility of reclassification by letter dated January 25, 2019.
On February 7, 2019, Ms. Y seized the Paris Labor Court to challenge her dismissal for incapacity.
On the date of the termination, Ms. Y had seniority of 12 years and 2 months and the company Indep'AM usually employed more than ten employees.
The Paris Labor Court, by judgment of November 25, 2019, to which the
court refers for the presentation of the previous procedure and the initial claims of the
parties, dismissed the employee of all of her claims.
The employee appealed.
2) Decision of September 6th, 2022
In its judgment of September 6, 2022, the Paris Court of Appeal (Pole 6 Chamber 11):
Confirms the judgment referred, in that it dismissed Mrs. Y of her
requests tending to the illegality of its agreement for a fixed hour per week, callbacks
overtime and compensation for concealed work.
invalidates it as to the surplus.
And ruling again overturned and adding thereto:
. revokes the warning issued to Mrs. Y on September 10, 2018.
. pronounces the termination of Mrs. Y's employment contract to the fault of
the employer and says that it produces the effects of a void dismissal.
. orders SA Indep'AM to pay Mrs. Y the following sums:
-5,000 euros in compensation for moral and sexual harassment and sexist remarks.
-1,353.43 euros as a reminder of additional hours increased by the sum of 135.34
euros of related paid leave between October 5, 2015 and May 31, 2016.
- 10,249.98 euros as conventional notice compensation in addition to the sum of 1,024.99
related paid leave.
-€1,391.32 as the balance of the conventional severance pay.
-25,000 euros as compensation for null dismissal.
-2,000 euros by application of article 700 of the code of civil procedure.
. orders the reimbursement to Pôle Emploi by SA Indep'AM of compensation for
unemployment benefits paid to Mrs. Y within the limit of 6 months.
. recalls that wage claims bear interest at the legal rate from the date of
receipt by the employer of his summons before the industrial tribunal while
claims for damages bear interest at the legal rate from the date of the decision by setting
both the principle and the amount.
. orders SA Indep'AM to issue Mrs. Y with a payslip
summary of the salary amounts allocated as well as a Pôle Emploi certificate
and a corrected work certificate in accordance with this judgment, within two months
from its meaning.
. dismisses Mrs. Y of the surplus of her claims.
. orders SA Indep'AM to pay the costs of the proceedings and appeal.
2.1) On the performance of the employment contract
2.1.1) On the contestation of the warning issued on September 10, 2018
By email sent on September 10, 2018, the employer issued the Appellant a warning worded as follows:
"During the presentation and discussion meeting on the new company agreement, you proclaimed to the Indep'AM employees that I myself did not have your confidence, which you supported with a “that is said”.
These remarks break with article 7 of your employment contract by which, on the one hand, you are bound by a "special obligation of loyalty" towards the Management, and on the other hand, you are supposed to " convey a positive image" and "protect the interests" of the company.
In addition, the position you hold assumes a certain reserve on your part, and mutual trust.
However, noting that the person who I am does not have your confidence, it is difficult for you to benefit in return from the confidence necessary for the proper functioning of our professional relations.
Therefore, I am sending you this warning, reminding you of your contractual obligations, and asking you to no longer open mail from the DGFIP, URSSAF,
the DIRECCTE, the AMF and other ministerial departments.(...)” Signed Z.
Pursuant to Article L.1331-1 of the Labor Code, a sanction constitutes any measure, other than verbal observations, taken by the employer following an action by the employee considered by the employer to be at fault, whether this measure is likely to affect immediately or not the presence of the employee in the company, his function, his career or his remuneration.
Article L. 1333-1 of the Labor Code, in the event of a dispute, the industrial tribunal assesses the regularity of the procedure followed and whether the facts alleged against the employee are such as to justify a sanction. The employer provides the industrial tribunal with the elements retained to take the sanction. In view of these elements and those provided by the employee in support of his allegations, the industrial tribunal forms its conviction after having ordered, if necessary, all the investigative measures that it deems useful. If a doubt remains, it benefits the employee.
Article L. 1333-2 of the same code specifies that the industrial tribunal may cancel a sanction that is irregular in form or unjustified or disproportionate to the fault committed.
For reversal of the judgment appealed from, the appellant, who disputes this sanction which is in her opinion neither justified nor proportionate, also argues that it had consequences on her function (the prohibition to open certain letters) of so that it should have been preceded by a preliminary interview, in addition to the fact that it was not provided for in the company's internal regulations. She therefore requests its cancellation.
For confirmation of judgment, the respondent company replies that the appellant discredited Mr. Z, damaging his image with all his collaborators, especially since it was the only one to show signs of defiance, which is why she was the only one to be punished. She denies that this sanction had an impact on her duties and indicates that the warning was indeed a sanction provided for in the scale of sanctions in the internal regulations.
The court held that the employer did not explain under what conditions the appellant would have expressed her distrust of him, not producing any witness statements on this point, whereas the employee stated without being effectively contradicted by being confirmed by a witness
Mrs W (exhibit 32), that it was in the context of a discussion relating to a new agreement on working time and on the monitoring of working hours that the employees participating in this meeting had, to the question expressly posed by Mr Z "You don't trust me? replied in the negative and that only Ms. Y was sanctioned.
The doubt having to benefit the employee, the court by reversal of the judgment annuls
the warning given.
2.1.2) On the additional hours claimed
For reversal of the contested judgment, the appellant argues that between October 5, 2015 and May 31, 2016, when she had resumed under a part-time employment contract, she worked 56.76 hours supplements that were never paid to him.
For confirmation of the judgment, the respondent company disputes the actual performance of the alleged additional hours by noting various inconsistencies in the documents provided by the employee.
According to Article L. 3171-4 of the Labor Code, in the event of a dispute relating to the existence or the number of hours of work performed, the employer provides the judge with the elements of
to justify the hours actually worked by the employee. In view of these elements and those provided by the employee in support of his request, the judge forms his conviction after having ordered, if necessary, all the investigative measures that he considers useful. If the count of the hours worked by each employee is ensured by an automatic recording system, this must be reliable and tamper-proof.
It follows from these provisions that, in the event of a dispute relating to the existence or number of hours worked, it is up to the employee to present, in support of his request, sufficiently precise elements as to the hours not remunerated that he claims to have performed in order to allow the employer, who monitors the hours worked, to respond usefully by producing his own elements.
The judge forms his conviction by taking into account all of these elements with regard to the requirements recalled in the aforementioned legal and regulatory provisions. After analysis of the documents produced by both parties, in the event that he retains the existence of overtime, he assesses sovereignly, without being required to specify the details of his calculation, the importance of these and sets the related wage claims.
The appellant provides in its exhibits a precise breakdown of the hours that it claims to have worked, deducting in particular the time for the midday break and holidays, as well as the list of e-mails sent from its professional e-mail system, in particular during the disputed period, attesting, according to her, for repeatedly exceeding her working hours of 28 hours per agreed week.
She gives sufficiently precise elements as to the unpaid hours she claims to have worked in order to allow the employer, who monitors the hours worked, to respond usefully by producing his own elements.
The employer did not submit any exhibits in this respect, limiting itself to criticizing the probative value of the exhibits submitted by the appellant and in particular the emails produced.
The Court therefore considers that the employee has completed the additional hours she is claiming and, by reversing the judgment appealed from, orders Indep'AM to pay her the sum of 1,353.43 euros as a reminder of additional hours increased by 1a sum of 135.34 euros of related paid leave.
2.1.3) On the validity of the hours package and the request for overtime
For reversal of the judgment referred, Mrs. Y argues that the first judges did not rule on the validity of the agreement of fixed price in hours over the week which was imposed on her and which is unlawful in particular in view of her remuneration which was lower the salary she would have received if her overtime hours had been paid to her. She indicates that it is no longer necessary to refer to the applicable contractual minimum but to a reference salary practiced in the company, that is to say hers since she was the only executive assistant, when she was on time. partial before being subject to the flat-rate agreement in hours per week.
Indep'AM replies that the parties agreed on a gross annual remuneration of 40,000 euros for 39 hours of weekly work (35 hours + 4 hours of overtime), stressing that the remuneration granted to the employee was much higher the minimum remuneration applicable in the company for 39 hours of work per week, by reference to the contractual minimum remuneration guaranteed for 35 hours to which are added 4 hours of additional work.
It specifies that the appellant is not justified in considering that the hourly rate which was applied to her when she was part-time corresponds to the guaranteed minimum remuneration within the company.
Article L. 3121-57, in the wording resulting from law no. 2008-789 of August 20, 2008, provides
: “The remuneration of the employee who has concluded a flat rate agreement in hours is at least equal to the minimum remuneration applicable in the company for the number of hours corresponding to his flat rate, increased by the increases for overtime provided for in Articles L. 3121 -28, L. 3121-33 and L. 3121-36. ".
It is right that the fixed remuneration can only result from an agreement between the parties and that the fixed price agreement must determine the number of hours corresponding to the agreed remuneration, this must be at least as advantageous for the employee than that which he would receive in the absence of an agreement, taking into account the increases for overtime.
In this case, it is established that the parties agreed on an annual remuneration of 40,000 euros, i.e. 3,333 euros per month for 39 hours of work (35 hours to which were added
4 additional hours of work).
The remuneration agreed within the framework of a flat-rate hours agreement, must not, within the meaning of the aforementioned article L. 3121-57, be lower than that of the lowest paid colleague of the company located at the same coefficient and in any event in this case at least guaranteed by the collective agreement of financial companies for executives at the coefficient 360 of an amount of 25,398 euros on April 1, 2017, i.e. 25,700.19 euros with the 4 overtime hours, any comparison with the salary received by Mrs. Y within the framework
of a previously concluded part-time contract being neither relevant nor appropriate.
Noting that Mrs. Y does not establish or even allege that her remuneration would be lower than the minimum remuneration applicable in the company for the executives of her coefficient while it is established that the salary received was higher than the contractual minimum, the court holds by confirmation of the judgment referred, that the recourse to the fixed price agreement by the company was lawful and that the appellant cannot claim the
overtime claimed.
2.1.4) On moral and sexual harassment and sexist behavior
For reversal of the judgment appealed from, the appellant claims to have been the victim of suffering at work due to overwork and over-solicitation, including during his work stoppages or his leaves akin to moral harassment but also acts and sexist remarks on the part of Mr. Z without any investigation being carried out.
The respondent company contests any harassment, whether moral or sexual, replying that the employee is failing in the proof of the facts which is incumbent upon her.
Article 1152-1 of the Labor Code provides that:
“No employee shall be subjected to repeated acts of moral harassment which have as their object or effect a deterioration of their working conditions likely to infringe their rights and their dignity, to alter their physical or mental health or to compromise their professional future. »
Article L.1153-1 of the Labor Code, in the version applicable to the proceedings, provides that
“No employee should be subject to facts:
1° Either sexual harassment, consisting of repeated comments or behavior with a sexual connotation which either undermines his dignity because of their degrading or humiliating nature, or creates an intimidating, hostile or offensive situation against him;
2° Or assimilated to sexual harassment, consisting of any form of serious pressure, even if not repeated, exerted with the real or apparent aim of obtaining an act of a sexual nature, whether this is sought for the benefit of the perpetrator or for the benefit of a third party.' »
Article L. 1153-1 of the Labor Code provides that "No employee, person undergoing training or internship, no candidate for recruitment, internship or training in a company may be sanctioned, dismissed or be the subject of a discriminatory measure, direct or indirect, in particular with regard to remuneration, training, reclassification, assignment, qualification, classification, professional promotion, transfer or renewal of contract for having undergone or refused to suffer acts of sexual harassment as defined in article L. 1153-1, including, in the case mentioned in 1° of the same article, if the remarks or behavior have not been repeated. »
Pursuant to Article L. 1154-1 of the Labor Code, then applicable, it is the responsibility of the employee who invokes it to present elements of fact suggesting the existence of harassment. In this case, it is up to the defendant to prove that these actions do not constitute such harassment and that its decision is justified by objective factors unrelated to any harassment.
In support of her claims, the appellant invokes with regard to sexual harassment and sexist acts which are necessarily linked:
- inappropriate, rude and sexist remarks by Mr. Z towards her, which she denounced in a first letter sent to the employer on October 4, 2018 when challenging his warning (Exhibit 26) then a second sent for remarks with a more sexual connotation in February 2019 (exhibit 25) “was it hot this weekend? What's new sexually? Nail polish I'm sure is sexual. I'm alright, do you want a hug? Hi
Miss G dot are you wearing a thong today? ".
- the testimony of another employee, Mrs. W, who reports having witnessed inappropriate comments of a sexual nature by Mr. Z with regard to Mrs. Y "you don't make people want to wear this hat" or "why are you sulking in my arms” or that he generally makes inappropriate remarks towards women who use the women’s toilets without embarrassment or who have asked her after a business meeting “if she had slept” (Exhibit 32, employee).
In support of the moral harassment linked to her workload, the appellant relies on overwork and over-solicitation even though she was either on leave or on sick leave, or even by e-mails at late hours.
It produces as such:
-exchanges of emails while she was on leave, or on sick leave or even late
(Exhibits 23-18 to 23-34, employee),
- Mrs. W's statement that Mr. Z had issued the order to leave Mrs.
Y quiet because she had a lot of work, so as to isolate her from her colleagues (exhibit 32, cited above).
Taken as a whole, these facts suggest the existence of moral harassment and
sexual.
The employer replies with regard to the facts of sexual harassment that the employee does not produce any certificate or any document which would establish the remarks attributed to Mr. Z who disputes it, specifying that Mrs. W who attested was only hired from January 2018 and that she finds herself in conflict with society without denouncing the facts that she reports. He points out that the appellant never issued the slightest alert or contacted anyone. He relies on the exchanges of text messages between the parties, which were always courteous, and on witness statements attesting to cordial and professional relations between the appellant and Mr. Z. He disputes any overload of work, considering that the emails produced are not not conclusive and asserts that Mrs. Y's requests beyond 6:15 p.m. were residual and corresponded to an emergency situation. Finally, he denied any causal link between the working conditions and the Appellant's state of health.
The court holds that Ms. Y explains that the deterioration of relations with Mr. Z, in particular through the latter's use of sexist or even sexual remarks, is recent and that if no witness statement is produced and if the exchanges (certainly older) of SMS were more courteous and correct (which is conceivable since they are written), the words attributed to the person concerned are however accredited by the testimony of Mrs. W, which respects the provisions of the article 220 et seq. of the CPC and criminally engaging its author, cannot be disqualified on the sole ground that it is also in conflict with society. The witness describes in fact the inappropriate remarks made by him with regard to women and two particular situations which may have made Ms. Y ill at ease. The certificates produced by the company tending to establish the cordiality and professionalism of the relationship between the appellant and Mr. Z are not such as to change this perception of the situation. It matters little that Mrs. Y did not denounce these sexist or even rude remarks made about her in their time or seize anyone of them, as this is not likely to cast doubt on their reality.
It is also established, even if the overwork should not be retained in the proportions invoked by Ms. Y, who benefited from a flat-rate agreement, that she was requested on numerous occasions while she was on leave. or on sick leave, in defiance of his right to rest. Finally, the causal link between the deterioration of the working conditions and his state of health emerges from the notice of unsuitability for his position noted by the occupational doctor.
In the absence of the employer demonstrating that the facts established by the appellant were justified by elements unrelated to any harassment, moral harassment and sexual harassment against Ms. Y must be retained.
In compensation for the damage caused by the harassment of which she was the victim, the court awarded the appellant a sum of 5,000 euros in damages and interest to which Indep'AM was condemned by setting aside the judgment referred.
2.2) On the termination of the employment contract
2.2.1) On the request for judicial termination
Pursuant to the provisions of article 1224, in the event of non-performance of its obligations by one of the parties, the other party may ask the judge to pronounce the termination of the contract.
contract.
When an employee requests the judicial termination of his employment contract due to facts for which he blames his employer, while continuing to work for him, and the latter later dismisses him for other facts that occurred during continuation of the contract, the judge must first determine whether the request for termination of the contract was justified. It is only in the opposite case that he must decide on the dismissal notified by the employer.
If the employee is no longer in the service of his employer on the day on which the judicial termination request is ruled on, the latter takes effect, if the judge pronounces it, on the day of the dismissal.
Judicial termination at the request of the employee is only justified in the event of breaches by the employer of sufficient gravity to prevent the continuation of the employment relationship.
In support of her request for the judicial termination of her employment contract, Ms. Y invokes in particular, in addition to the situation of moral and sexual harassment suffered, the unpaid additional and overtime hours, the unlawful fixed price agreement and the unjustified warning.
In view of what has been judged above, the court holds that the non-payment of overtime, the cancellation of the warning and the situation of moral and sexual harassment retained, characterize breaches by the employer serious enough to prevent the continuation of the employment relationship justifying the judicial termination of it at the fault of the employer, with effect from January 25, 2019, date of dismissal.
Moreover, this termination pronounced in a context of moral harassment characterized above, produces the effects of a null dismissal.
The judgment will therefore be set aside on this count.
2.3) On the financial consequences
2.3.1) On the indemnity in lieu of notice
Ms. Y is seeking compensation in lieu of notice of 13,431.71 euros in addition to paid leave corresponding to three months' salary.
In view of the payslips produced during the debates and the seniority of the employee, by setting aside the decision taken, Indep'AM will be ordered to pay Mrs.
Y the sum of 10,249.98 euros corresponding to the wages she would have received if she had performed the three months of conventional notice, in addition to the sum of 1,024.99
related paid leave.
2.3.2) On the balance of the conventional severance pay
Article 4 of the collective agreement for financial companies specifies that an executive employee who is the holder of an employment contract of indefinite duration and who is made redundant is entitled to severance pay.
The methods for calculating this indemnity are based on the gross remuneration from which the employee benefited prior to the termination of the employment contract and his seniority, i.e. ½ month per year of presence and ¾ of a month per year of presence for the portion exceeding
10 years.
In this case, Mrs Y was entitled to receive a sum of 22,208.29 euros in this respect, from which the sum of 20,816.97 euros paid to her should be deducted, so that she still has balance of 1,391.32 euros, payment of which Indep'AM, by setting aside the judgment referred, will be condemned.
2.3.3) On compensation for null dismissal
Ms. Y, who is not asking to be reinstated, is entitled to compensation for all of her damage resulting from the unlawful nature of the termination of her employment contract.
Under Article L.1235-3-1 of the Labor Code, the provisions of Article L.1235-3 are not applicable to dismissal vitiated by nullity.
When the employee does not request the continuation of the performance of the employment contract or when reinstatement is impossible, the judge grants him compensation, at the expense of the employer, which cannot be less than the wages of the last 6 months.
Consequently, Mrs. Y should be awarded the sum of 25,000 euros as compensation for the damage resulting from the unlawful nature of the dismissal.
The judgment will be set aside on this count.
Pursuant to article L.1235-4 of the labor code, in the cases provided for in articles L.
1132-4, L. 1134-4, L.1144-3, L.1152-3, L.1153-4, L.1235-3 and L.1235-11, the judge orders reimbursement by the offending employer to the organizations concerned of all or part of the unemployment benefits paid to the dismissed employee, from the day of his dismissal to the day of the judgment pronounced, within the limit of six months of unemployment benefits.
This reimbursement is ordered automatically when the organizations concerned have not intervened in the proceedings or have not made known the amount of the indemnities paid.
In this case, it is appropriate to order the reimbursement by Indep'AM of the unemployment benefits paid to Mrs. Y within the limit of 6 months.
2.5) On the compensation for concealed work
Under the terms of Article L. L. 8221-5 of the Labor Code, in the wording applicable to the
Dispute “Is deemed work concealed by concealment of salaried employment the fact for any employer:
1° Or to intentionally evade the completion of the formality provided for in Article L. 1221-10, relating to the declaration prior to hiring;
2° Either to intentionally evade the issue of a payslip or an equivalent document defined by regulation, or to mention on the payslip or the equivalent document a number of working hours lower than those actually accomplished, if this mention does not result from a convention or a collective agreement on the organization of working time concluded in application of title II of book I of the third part;
3° Or to intentionally evade declarations relating to salaries or social security contributions based on them to organizations for the collection of social security contributions and contributions or to the tax authorities by virtue of legal provisions. »
Concealment of salaried employment is characterized only if it is established that the employer acted intentionally.
In the present case, there is no evidence to show the employer's intention to conceal in view of the small number of unpaid overtime hours and then in the context of a weekly flat-rate agreement in place.
The appellant is, by confirmation of the judgment appealed from, dismissed of its claim on this count.
2.6) Other provisions
Indep'AM must issue Mrs. Y a pay slip summarizing the sums of a salary nature allocated as well as a Pôle Emploi certificate and a rectified work certificate in accordance with this judgment, within a period of two months from its significance without the penalty measure being justified as it stands.
The court recalls that the wage claims bear interest at the legal rate from the receipt by the employer of his summons before the industrial tribunal, while the indemnity claims bear interest at the legal rate from the date of the decision, fixing everything at both the principle and the amount.
Losing party, the company Indep'AM is ordered to pay the costs of the proceedings and appeal, the judgment being reversed on this point and to pay the appellant the sum of 2,000 euros by application of article 700 of the code of procedure civil.
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
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