DISMISSAL PROCEDURE: The employer may announce a dismissal orally only if the notification letter has already been sent.
In this case, an employer had sent a dismissal notification letter to an employee and, at the end of the day, had phoned the concerned person to inform him of the measure. The dismissal letter reached the employee the following day. The Court of Appeal considered that the employee demonstrated that he had been verbally dismissed over the phone, concomitantly with the sending of the dismissal letter. It therefore ruled that the dismissal was without real and serious cause. The employer appealed and argued that when he called the employee, the employment contract had already been terminated. It is indeed established case law that the termination of the employment contract occurs on the date when the employer has expressed his will to put an end to it, that is to say on the day of the sending of the letter notifying the termination. However, a doubt remained: were judges to choose the date or time of the mail? the French Supreme Court (Cour de cassation) ruled on the question and quashed the judgment of the Court of Appeal. The latter should have “investigated whether the registered letter with acknowledgment of receipt notifying the termination of the employment contract had not been sent to the employee before the phone conversation, so that the employer had already irrevocably expressed his will to put an end to it”. It is therefore up to the Court of Appeal to piece together the chronology of the facts. This judgment underlines the interest, for an employer, of sending the dismissal letter by registered mail with acknowledgment of receipt, which alone can attest to the date and time of the filing of this letter (Cass. Soc., 28 Sept. 2022, No. 21-15.606).
DAYS WORKED CONTRACT (FORFAIT-JOURS): Hours worked on Sunday are not extra hours.
As a reminder, employees under a days worked contract, i.e., with a remuneration based on the number of days worked (known as forfait-jours), must benefit from the minimum daily rest of 11 hours and of the weekly rest given in principle on Sunday (Articles L.3132-1 to L.3132-3 of the Labor Code). In this case, an employee had argued that non-compliance with the rules relating to weekly rest led to consider that the hours of work performed in violation of these provisions escaped the rules of the days worked contract and should be considered as extra hours and paid as such. In a decision of 21 September 2022, the Cour de cassation considers that the failure by the employer to comply with the Sunday rest of an employee who is subject to a days worked contract agreement cannot lead to consider that the hours worked on Sunday are extra hours escaping the rules of the days worked contract. However, the doctrine considers that, in this case, the employee could claim other compensation. Indeed, the employee could have requested, in case of exceeding the number of days provided for in his days worked contract, the payment of the excess days with application of a rate of increase. He could also have claimed damages, invoking the violation of the legal provisions relating to Sunday rest (Cass. Soc. 21 Sept. 2022, No. 21-14.106).
CSE’s ACTION: The CSE (social and economic committee) may not invoke, as it is inadmissible, the illegality of a clause of a mandatory profit-sharing agreement that it signed itself.
In 2013, an Indian company entered into a mandatory profit-sharing agreement with the works council of its French branch. A few years later, the Syndex expert firm appointed by said council considered that the amount of the profit-sharing special reserve, calculated according to the terms of the agreement signed in 2013, resulted in an amount lower than that which should have resulted from the legal formula. In order to obtain the remainder of the profit-sharing special reserve for the 2014 to 2017 financial years, the CSE therefore took legal action against the company. The Cour de cassation upheld the decision of the Court of Appeal and rejected the appeal lodged by the CSE, stating as a reminder the provisions of Article L. 3322-2 of the Labor Code, according to which “the profit-sharing assignment and management methods are fixed by agreement”. It concludes that the CSE could “not, as it is inadmissible, invoke, by way of exception, the illegality of the clause of this agreement which, in the silence of the law, determined the method of calculation of the equity of a French branch of a foreign company” (Cass. Soc., 19 Oct. 2022, No. 21-15.270).
WHISTLE–BLOWERS: Publication of the implementation decree relating to the protection of whistle-blowers.
Adopted pursuant to law No. 2016-1691 of 9 December 2016 known as Sapin II in its wording resulting from law No. 2022-401 of 21 March 2022 aiming at improving the protection of whistle-blowers, the decree of 3 October 2022 specifies the main contributions of this law and revises the standards of the procedure for collecting the reports. The text provides details in particular on how to inform the whistle-blower of the receipt of his report and of the reasons for its admissibility or not, but also on the recording of the oral report for a period strictly necessary and proportionate to the processing of the report. It extends the guarantee of strict confidentiality “of the author of the report, of the facts subject of the report and of the persons concerned” to “any third party mentioned therein“, and imposes the transmission “without delay” to the persons or services “designated by the entity to collect and process reports“. Similarly, it requires reporting companies, “after consultation with social dialogue bodies”, to integrate into their system the prerogatives of collecting and processing reports by external authorities. Finally, it makes it possible to have a pooling of the “channel for receiving reports” and of the “assessment of the accuracy of the allegations made” (Decree No. 2022-1284 of 3 October 2022, Official Journal of 4 Oct.).
UNAUTHORIZED ABSENCE: The bill on the labor market, adopted by the National Assembly on 6 October 2022, establishes a presumption of resignation in the event of a deliberate unauthorized absence.
As a reminder, an employee’s resignation must be clear and unequivocal (Cass. Soc., 21 Oct. 2020, No. 19-10.635); it may not be presumed. Wishing to regulate unauthorized absences, the members of the National Assembly provided that an employee who was deliberately absent and who did not return to work after being given formal notice by his employer would be presumed to have resigned. This is a simple presumption, the employee may therefore rebut it before the judge. An escape route would also be available to him, since he could refer his case before the labor court to contest the termination of his employment contract on the basis of this presumption. The case would then be brought directly before the ruling panel, which would have to rule on the nature of the termination within a month. This procedure raises many questions as there has never been a presumption of resignation in the labor code. At most, the Cour de cassation was able to deduce from the employee’s behavior his resignation, in specific circumstances, for example in the case of an employee who had not returned to work after sick leave despite a formal notice from the employer, and who had joined a competing company (Cass. Soc., 4 Jan. 2000, No. 97-43.572). In addition, the law referring to a “deliberate” unauthorized absence, the employee’s intention must be proven. Beyond these probative difficulties, the procedural guarantees are just as uncertain: the one-month period available to the judge to rule is in reality impracticable and exposes the employee who is presumed to have resigned to receive nothing during several months.