NewsletterNewsletter No.174 – June 2023
VARIABLE REMUNERATION: The annual objectives defined unilaterally by the employer are not implicitly renewable.
When the variable remuneration is conditioned by objectives defined unilaterally and annually by the employer, failure to set them entails the payment of all of said remuneration (CA Grenoble, 23 January 2020, No. 18/04055). In this case, an employer had set objectives only for certain years, considering, like the Court of Appeal, that these should be, each time, implicitly renewed until the definition of new objectives. The French Supreme Court (Cour de cassation) does not share this opinion: “while it had noted, on the one hand, that the variable part of the contractual remuneration of the employee depended on the achievement of objectives fixed unilaterally by the employer, on the other hand, that it had not set the objectives to be achieved for the years 2014, 2015 and 2017, the Court of Appeal (…) did not draw the legal consequences of its findings”. The Court therefore specifies that an implicit renewal of the objectives is impossible and that failure by the employer to define them shall entail the payment of all the variable remuneration to the employee (Cass. soc., 7 June 2023, No. 21-23.232).
TRAVEL TIME: The travel times of an employee on a long journey do not automatically constitute working time.
In this case, an employee on an extended journey was staying in a hotel as a mystery investigator, and had to visit a new site each day. At the end of his assignment, the employee claimed payment for the travel times between his hotel and the sites visited as actual working time. In a decision of 7 June 2023, the Cour de cassation takes a different position and rules that it is necessary to verify whether “the trips made by the employee to get to the hotel to sleep there, and to leave said hotel, did not constitute travel times between two places of work, but simple business trips not to be equated with actual working time“, in accordance with Article L.3121-4 of the Labor Code, and to ensure that during these travel times, “the employee was required to comply with the employer’s instructions without being able to freely attend to his own affairs”, in accordance with Article L.3121-1 of the Labor Code, which was not the case here (Cass. soc., 7 June 2023 No. 21-22.445).
TERMINATION OF EMPLOYMENT CONTRACT: The dismissal pronounced in lieu of a disciplinary sanction is not necessarily of a disciplinary nature.
According to case law (in particular Cass. soc., 8 July 2008, No. 06-45.783), the reason for termination mentioned in the dismissal letter determines whether or not it is disciplinary. In this case, an employer had proposed a disciplinary demotion to an employee resulting in a modification of the employment contract, which he had refused. The employer then notified the employee of his dismissal, repeating the same facts and grievances as in the letter proposing the demotion, but this time citing incompetence, as well as a real and serious cause. The Court of Appeal held that the dismissal was necessarily of a disciplinary nature because of the previous sanction proposal. In a decision of 7 June 2023, the Cour de cassation considers, for its part, that “without investigating whether the reason mentioned in the letter of dismissal could be qualified as disciplinary, the Court of Appeal deprived its decision of a legal basis“. Reaffirming its position of 2008, the Cour de cassation holds that only the letter of dismissal defines the disciplinary nature or not of the dismissal, regardless of the previous proposal for a sanction (Cass. soc., 7 June 2023, No. 21-21.012).
PROTECTED EMPLOYEES: A judge can rule on the validity of sanctions adopted against a protected employee before his dismissal.
On the occasion of the dismissal of a protected employee, it is up to the labor administration to decide on the merits of said dismissal (Labor code, Art. L. 2421-1). In this case, a protected employee, after having been dismissed, intended to have moral harassment committed by his employer recognized, characterized by the accumulation of sanctions which he considered unjustified. In a decision of 1 June 2023, the Cour de cassation rules that, if it is up to the labor administration to verify that the facts sanctioned by the employer are established and constitute a fault in the context of the dismissal, and that the latter is unrelated to the corporate offices of the employee, such control cannot relate to the validity of the previous disciplinary sanctions put forward by the employer during the dismissal. Thus, the Cour de cassation holds that “the authorization for dismissal given by the labor administration does not prevent the employee from asserting the systematic or unjustified nature of these sanctions before the judge as elements allowing to presume the existence of moral harassment”. Therefore, the “dismissal authorization given by the labor administration does not prevent the judge from ruling on the validity of these sanctions” (Cass. soc., 1 June 2023, No. 21-19.649).
TELEWORK: An employee’s accident occurring outside working hours is not an accident at work.
An employee working from home fell down her stairs after clocking out. She maintained that the accident had occurred barely a minute after her clocking out, so that the accident should be considered as an accident at work. In a decision of 15 June 2023, the Court of Appeal of Amiens ruled however that “since the accident occurred outside the exercise of the professional activity of the teleworker, the presumption of imputability of the accident at work cannot apply“. In this context, “it is up to the victim to provide proof of the materiality of the accidental event, of its occurrence by the fact or on the occasion of the work and of the causal link between the injuries and the accidental event“. However, such proof cannot result solely from the declarations of the employee (CA Amiens, 15 June 2023, No. 22/00474).
WORK ACCIDENTS: Obligation of the employer to inform the labor inspectorate within 12 hours of the accident.
In the event of a fatal work accident, the employer must, as with any work accident, notify the CPAM (local health insurance fund) of this event within 48 hours of its occurrence (Labor Code, Article R.441-3). Decree No. 2023-452 of 9 June 2023 adds a new obligation to the employer: indeed, since 12 June 2023, the employer is under the obligation “[to inform] the labor inspectorate control officer having jurisdiction over the place of occurrence of the accident, immediately and at the latest within twelve hours following the death of the worker, unless he establishes that he could not have known of the death until later”. The information is communicated by any means making it possible to confer a certain date, and must in particular include the contact details of the company or the establishment which was employing the worker at the time of the accident, the identity of the victim, the date, hour, place and circumstances of the accident as well as the identity and contact details of any witnesses. In the absence of information provided to the labor inspectorate, the employer shall incur a fifth class fine (Official Journal of the French Republic, No. 0134 of 11 June 2023).