The intern considered that she was not an intern but an employee.
By judgment of the Paris Labor Court of January 23, 2023 (distribution), the internship agreement is reclassified as a salaried employment contract and the termination is reclassified as dismissal without cause.
She gets a total of 38,242 euros gross.
The company has appealed the decision of the Paris Labor Court, the judgment is therefore not final.
1.1) On the request for requalification
It appears from the internship agreement that the activities entrusted to Ms. X were as follows:
“Function: E-BUSINESS ADVISOR/DIGITAL PROJECT MANAGER, COSMETICS MARKETING”.
*E-marketing strategy design
*The implementation of a complete e-business strategy allowing our partner brands to attract more visitors and better convert them into customers
* Designing relevant influencer marketing campaigns
*The design of a traffic acquisition strategy via natural referencing, Social Media, referal, SEA…
*The implementation of the editorial line
* Monitoring of actions over the long term, their analysis and the resulting recommendations
*The creation and animation of communities to offer an experience beyond the sale of products, to create commitment and notoriety
* Formulate commercial proposals and present them
*Prepare reports and present them.
The internship offer specified that “we are looking for a future team member; This is a 6-month end-of-study internship that will lead to permanent employment. »
It is undisputed that during her internship, Mrs X participated in the construction of commercial offers, led project follow-up meetings with clients, established agendas, presented or co-presented deliverables, made reports, was entrusted with the production of certain deliverables, in addition to the agency's project management: marketing campaign brief, organization of influencer events, keyword studies, summaries of quantitative studies and coordinated and planned the production of the business division teams in the Freedcamp tool.
She reported on a weekly basis on the progress of all the projects to the manager Mrs. Y, then distributed the priorities and instructions to the teams for the coming week and monitored their implementation.
His tutor designated in the internship agreement, Mr. V, only set him “prioritization” appointments intended exclusively to set the order of priorities of the tasks entrusted to him and to check their progress.
Regarding the training in the Freedcamp tool which would have been delivered on April 23, 2019, it appears from the company's document Makeup Bag n°13 that it was in fact a "Project Management" meeting. including Mrs X, of course, but also Mrs W in order to carry out the transfer of missions for the management of the agency's projects, piloted on the Freedcamp tool.
The Makeup Bag company cannot validly maintain that it provided training on the company's values, whereas Ms Y contented herself with making a "quick point or I am going to present you with a document on the vision/values and a sharing of experience on the agency side”.
The internship report was written late after reminder from the educational establishment.
It should be considered that Mrs. X has never benefited from any training, the latter assuming functions corresponding to a permanent job in the company, in complete autonomy.
The internship agreement should be reclassified as a permanent contract.
The termination of the employment contract must therefore be analyzed as a dismissal, necessarily abusive in the absence of any motivation.
1.2) On the salary reminders due to Ms X due to the requalification of her internship agreement into an employment contract
Ms. X is requesting back pay for the period from April 15 to October 11, 2019.
To this end, the employee requests that this salary be fixed at the monthly sum of 3,333 euros, arguing that under a permanent contract, she could have benefited from an annual salary of 40,000 euros, referring to an offer of job corresponding to the position she held within the company Makeup Bag retaining the qualification of "Digital Project Manager" and a salary range of between 30,000 and 40,000 euros gross, the employer acknowledging that this job offer corresponds to that of a frame.
As this is a retraining job and no comparative element was produced in the debates, it is appropriate to retain a reference salary of 30,000 euros, i.e. the sum of 2,500 euros monthly.
From April 15 to October 11, 2019, Ms. X received an internship bonus for a total amount of 3,432 euros.
He should be allocated the sum of (15,000 – 3,432) = 11,568 euros for this back pay in addition to the sum of 115.68 euros for the related paid leave.
1.3) On the back pay for the period from April 1 to 7, 2019
Ms. X claims to have started working as early as April 1, 2019.
It follows from the emails exchanged regarding the transmission of assignments, and Mrs. X's participation in meetings during this period, as evidenced by the production of reports, it should be noted that her work within the company Makeup Bag started on April 1, 2019.
It is advisable to retain a working time of 39 hours worked per week.
The reference salary having been set at the sum of 2,500 euros per month, corresponding to an hourly salary of 16.5 euros, Mrs. sum of 64.50 euros for related paid leave.
To read the full decision, click the link below.
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
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: : 45, Rue Saint Etienne 59000 Lille – Ligne directe +(33) 03.20.57.53.24
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